Appeal from the PCRA Order, January 17, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0011538-2007
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND PLATT, [*] JJ.
FORD ELLIOTT, P.J.E.
Michael Gajewski appeals from the order denying relief on appellant's second petition brought pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In connection with an incident involving the victim S.J., appellant entered a nolo contendere plea to indecent assault of a person less than 13 years of age and corruption of minors. Immediately thereafter, appellant was sentenced to time served plus a term of 5 years' probation for indecent assault as well as a consecutive term of 2 years' probation for corruption of minors. On August 29, 2008, appellant filed a petition to withdraw his plea claiming he was not aware that CYF would remove S.J. from his girlfriend's home; the petition was denied on September 8, 2008. (Docket #9.) Appellant filed a direct appeal asserting that the lower court erred in denying his post-sentence motion to withdraw his plea; judgment of sentence was affirmed on October 7, 2010. Commonwealth v. Gajewski, 15 A.3d 520 (Pa.Super. 2010) (unpublished memorandum).
On October 27, 2011, appellant filed a pro se PCRA petition challenging the voluntariness of his plea and raising a claim that the victim had recanted her allegations against him. On November 2, 2011, the court appointed Charles R. Pass, III, Esq., to represent appellant and an amended petition was filed raising the additional claim that his sentence was illegal as it exceeded the lawful maximum. On March 7, 2012, appellant was resentenced due to a probation violation and a corrected sentence was imposed rendering the illegal sentencing claim raised in the PCRA petition moot. On May 18, 2012, counsel filed a no-merit letter requesting to withdraw pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The court granted counsel's motion to withdraw but appointed new counsel to represent appellant at a hearing limited to the recantation issue.
Following evidentiary hearings on December 17, 2012 and January 16, 2013, the court denied appellant's petition by order dated January 17, 2013. This timely appeal followed. Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.
Appellant presents the following issue for our review:
WHETHER THE PCRA COURT ERRONEOUSLY DISMISSED APPELLANT'S PCRA PETITION AND DETERMINED THAT THE VICTIM CREDIBLY TESTIFIED AND DID NOT RECANT HER TESTIMONY WITH REGARD TO THE FACTS SUPPORTING THE CHARGES, WHEN THE RECANTATION LETTER PURPORTEDLY AUTHORED BY THE VICTIM WAS EXCULPATORY AFTER-DISCOVERED EVIDENCE THAT WOULD HAVE CHANGED THE OUTCOME OF THE TRIAL IF IT HAD BEEN INTRODUCED[?]
Appellant's brief at 5.
Essentially, appellant argues that the PCRA court erred when it determined that he was not entitled to relief from his guilty plea on the basis that the victim recanted her claim that appellant had assaulted her. Our standard of review of a PCRA court's denial of a petition for post-conviction relief is well settled. We must examine whether the record supports the PCRA court's determination, and whether the PCRA court's decision is free of legal error. Commonwealth v. Hall, 867 A.2d 619, 628 (Pa.Super. 2005), appeal denied, 86 Pa. 756, 895 A.2d 549 (2006). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001). Our scope of review is limited by the parameters of the PCRA. Commonwealth v. Hellman, 867 A.2d 542, 544 (Pa.Super. 2005), appeal denied, 583 Pa. 669, 876 A.2d 393 (2005).
"To be eligible for PCRA relief, the burden rests upon the PCRA petitioner to establish by a preponderance of the evidence that his sentence resulted from one or more of the enumerated errors or defects listed in 42 Pa.C.S.A. § 9543(a)(2)." Commonwealth v. Crawley, 541 Pa. 408, 412-413, 663 A.2d 676, 678 (1995). The PCRA subsection governing relief from a guilty plea is as follows:
(a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of ...