J. S50011/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JULIAN DAIN McDONALD, : No. 1721 WDA 2013

:

 Appellant :

Appeal from the PCRA Order, September 25, 2013,

in the Court of Common Pleas of Bedford County

Criminal Division at No. CP-05-CR-0000328-2009

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2014

Julian Dain McDonald appeals from the order of September 25, 2013, 

denying his PCRA1 petition. We affirm.

On August 1, 2009, at approximately 8:47 a.m., Pennsylvania State 

Police Trooper Steven Lucia stopped a silver Chrysler on the Pennsylvania 

Turnpike for tailgating a mini-van. Commonwealth v. McDonald, 

Nos. 1765 & 1789 WDA 2010, unpublished memorandum at 2 (Pa.Super. 

filed July 27, 2011). Appellant was the passenger; his brother and 

co-defendant, Michael McDonald, was the driver. Id. at 3. Trooper Lucia 

testified that when appellant rolled down his window, he immediately 

smelled an overwhelming odor of raw marijuana emanating from the vehicle. 

 

1

Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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Id. Neither appellant nor his brother could produce a valid driver’s license. 

Id. at 3-4. The registration card identified the vehicle as an Alamo rental 

vehicle. Id. at 4.

Trooper Lucia testified that both men were extremely nervous. Id. 

Their hands were shaking uncontrollably; they were breathing heavily and 

avoiding eye contact. Id. Appellant’s face was twitching, and the artery in 

his neck was visibly pounding. Id. Trooper Lucia also observed in plain 

view three cell phones, a GPS unit, a large amount of Red Bull energy 

drinks, fast food wrappers, and a spray can of air freshener. Id. The rental 

agreement provided to Trooper Lucia was expired; it indicated that the 

vehicle had been rented in Philadelphia on July 20, 2009, and was to be 

returned on July 28, 2009. Id. at 5. There was no indication that the terms 

of the agreement had been extended. Id. Furthermore, the renter of the 

vehicle was listed as Kelly Haranczak, who was not present. Id. Neither 

appellant nor his brother was listed as an authorized driver of the Chrysler 

vehicle. Id.

When Trooper Lucia ran their driver’s licenses, he discovered that 

appellant’s was suspended and Michael’s had expired. Id. Trooper Lucia 

returned to the car and again smelled the “obvious overwhelming odor of 

raw marijuana coming from the vehicle.” Id. at 6. Trooper Lucia informed 

Michael that he was going to give him traffic warnings for following the 

mini-van too closely and for driving with an expired license, but would not 
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cite him. Id. Trooper Lucia asked Michael who had rented the Chrysler, and 

he responded, “Kelly.” Id. at 7. Michael informed Trooper Lucia that Kelly 

was his girlfriend. Id. Appellant also confirmed that Kelly had rented the 

vehicle; however, he was unable to produce her last name. Id. at 8. 

Trooper Lucia testified that both men appeared to be extremely nervous, 

even though he had told them they would not be receiving a traffic citation. 

Id. at 7-8.

At this point, Trooper Lucia told appellant that he was smelling an odor 

of marijuana coming from the vehicle, and asked if there was anything like 

that in the vehicle; appellant replied, “No.” Id. at 8. Trooper Lucia asked 

for consent to search the vehicle, which was denied. Id. Michael also 

denied consent to search, indicating that he had “to be somewhere.” Id. at 

9. At that point, Trooper Lucia called for back-up and told appellant and 

Michael that he intended to search the vehicle. Id. Trooper Lucia 

discovered $1,080 in cash in a handbag in the back seat, and a large 

cellophane wrapped bundle of suspected marijuana in the trunk. Id. at 10. 

At the completion of the search, police recovered 177 pounds of marijuana. 

Id.

Appellant and Michael filed a joint motion to suppress physical 

evidence which was denied. They proceeded to a jury trial as 

co-defendants, and were found guilty of one count each of possession with 

intent to deliver a controlled substance (“PWID”), possession of drug 
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paraphernalia, and criminal conspiracy. On October 18, 2010, they were 

each sentenced to an aggregate of 6 to 11 years’ incarceration.2 They filed 

separate notices of appeal; however, the cases were consolidated on appeal. 

In an unpublished memorandum filed July 27, 2011, this court affirmed the 

judgments of sentence; and on February 23, 2012, our supreme court 

denied allowance of appeal. Commonwealth v. McDonald, 433 WAL 2011 

(Pa. filed February 23, 2012) (per curiam).

On March 15, 2012, appellant filed a timely pro se PCRA petition. 

Counsel was appointed, and filed amended petitions on appellant’s behalf. 

Following an evidentiary hearing, at which appellant and his brother Michael 

testified, appellant’s petition was denied. This timely appeal followed. 

Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the 

PCRA court has filed an opinion, relying on its prior memorandum of 

September 25, 2013.

Appellant has raised the following issues for this court’s review:

1. Whether the trial court erred in denying 

appellant’s petition for [PCRA] relief where 

newly discovered evidence unavailable at the 

time of trial was exculpatory and would have 

changed the outcome of the trial?

2. Whether the trial court erred in failing to find 

trial counsel ineffective for failing to move to 

sever appellant’s case from that of his 

co-defendant prior to trial?

 

2 The five-year mandatory minimum for the PWID conviction was also the 

statutory maximum, resulting in a flat sentence. 
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3. Whether the trial court erred in failing to find 

trial counsel ineffective for failing to advise 

appellant that a conviction for a felony drug 

offense could result in his deportation from the 

United States?

Appellant’s brief at 4.

Initially, we recite our standard of review:

This Court’s standard of review regarding an order 

denying a petition under the PCRA is whether the 

determination of the PCRA court is supported by the 

evidence of record and is free of legal error. 

Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 

795, 799 n. 2 (2005). 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).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), 

appeal denied, 940 A.2d 365 (Pa. 2007).

In his first issue on appeal, appellant claims he is entitled to a new 

trial based on newly discovered evidence. Appellant presented an affidavit 

from his brother and co-defendant, Michael, which states: 

I Michael D. Mcdonald swear that on August 1, 2009 

[I] acted alone in the criminal activity that i [sic] am 

now incarcerated for, furthermore it is my sworn 

statement that [appellant] had no knowledge of the 

events that took place on the above mentioned day. 

It is my sworn testimony that I Michael D. Mcdonald 

acted alone and in no way conspired with 

[appellant].

Petitioner’s Exhibit A; affidavit of Michael Dain McDonald, 3/11/13 at 1.

At the PCRA hearing on June 27, 2013, Michael McDonald testified that 

the drugs were his and that appellant had no idea they were there. (Notes 
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of testimony, 6/27/13 at 14.) When asked why he waited until March 11, 

2013, to say anything, Michael testified that he was scared. (Id. at 15.) 

According to Michael, he did not make this information available to appellant 

until March 2013: 

My -- since I’ve been incarcerated, it’s been eating 

me alive. It’s just now, I really, really come to me to 

come out with the truth. Because it’s just been me 

holding that in. I couldn’t do it no [sic] more. I just, 

I just couldn’t because he didn’t have nothing [sic] 

to do with this and at that point, that’s the time I 

gave up and I just say, I’m just going to let it out. I 

don’t know, so.

Id. at 18-19.

Appellant is proceeding under Section 9543(a)(2)(vi) of the PCRA 

statute. According to that subsection, the petitioner must plead and prove 

by a preponderance of the evidence that his conviction or sentence resulted 

from: “The unavailability at the time of trial of exculpatory evidence that 

has subsequently become available and would have changed the outcome of 

the trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi).

[Section] 9543(a)(2)(vi) provides for post-conviction 

relief where a petitioner could prove a claim of newly 

discovered exculpatory evidence. In order to 

succeed on such a claim, the petitioner must 

establish by a preponderance of the evidence that: 

(1) the evidence has been discovered after the trial 

and it could not have been obtained at or prior to 

trial through reasonable diligence; (2) such evidence 

is not cumulative; (3) it is not being used solely to 

impeach credibility; and (4) such evidence would 

likely compel a different verdict.
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Commonwealth v. Fiore, 780 A.2d 704, 711 (Pa.Super. 2001), 

appeal granted, 797 A.2d 910 (Pa. 2002), appeal dismissed, 817 A.2d 

1080 (Pa. 2003), citing Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 

(Pa. 1998) (citations omitted).

We agree with the PCRA court that Michael’s affidavit is not newly 

discovered evidence in any traditional sense. (PCRA court opinion, 9/25/13 

at 4.) Obviously, appellant knew from day one whether or not he was aware 

of the marijuana in the trunk of the car. Commonwealth v. Washington, 

927 A.2d 586 (Pa. 2007), is instructive. In that case, the appellant’s 

co-defendant, Derrick Teagle (“Teagle”), who did not testify, asserted that 

he, not the appellant, fired the fatal shot and that he lied to police about the 

appellant being the shooter to avoid the death penalty. Id. at 596. Teagle 

claimed that the shooting was an accident. Id. The appellant filed a PCRA 

petition asserting that Teagle’s declaration constituted newly discovered 

evidence compelling a new trial. Id.

Our supreme court noted that Teagle’s confession-declaration was not 

technically a recantation because he did not testify against the appellant at 

trial and his statement to police was only admitted as evidence against him, 

not the appellant. Id. at 597. Therefore, his declaration was not a true 

recantation. Id. Nevertheless, the Washington court analyzed Teagle’s 

declaration consistently with prior jurisprudence pertinent to recantation 

evidence; Teagle’s current assertion contradicted his pre-trial statement to 
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police and was a confession to the crime for which the appellant was 

convicted and sentenced. Id.

The Washington court observed that the PCRA court implicitly found 

Teagle’s affidavit not to be credible. Id. The PCRA court analyzed Teagle’s 

confession and noted that he had nothing to lose in contradicting his 

pre-trial statement. Id. The PCRA court concluded that the evidence was 

not truly after-discovered and was not persuasive evidence of the appellant’s 

innocence. Id.

Similarly, here, the PCRA court listened to Michael McDonald’s 

testimony and found him not to be credible. (PCRA court opinion, 9/25/13 

at 4.) The PCRA court observed that, similar to Teagle in the Washington

case, Michael was already convicted and sentenced for the crime and “has 

nothing to lose.” (Id.) It should also be noted that Michael and appellant 

are brothers and so Michael has a motive to give false testimony. In 

addition, Michael’s affidavit should be viewed the same as recanting 

testimony, which has been recognized as “exceedingly unreliable.” 

Commonwealth v. Loner, 836 A.2d 125, 135 (Pa.Super. 2003), appeal 

denied, 852 A.2d 311 (Pa. 2004).

In fact, at the arraignment, appellant took full responsibility for the 

crime. Appellant stated that Michael “had no idea about anything,” that he 

was “very sorry,” and he claimed the luggage in the vehicle as his alone. 

(Notes of testimony, 6/27/13 at 50.) Appellant told the magisterial district 
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judge who arraigned him on these charges that he had made a mistake and 

was very disappointed in himself. (Id.) So, as the PCRA court observes, 

either Michael or appellant is lying. (PCRA court opinion, 9/25/13 at 4.) 

Both of them have taken sole responsibility for the crime and claimed that 

the other brother knew nothing. (Id.) The PCRA court’s conclusion that 

Michael’s affidavit is simply not believable is fully supported by the record 

and will not be disturbed on appeal. The PCRA court did not err in denying 

appellant’s newly discovered evidence claim. 

Appellant’s final two issues relate to trial counsel ineffectiveness. 

Appellant argues that trial counsel, Steven Passarello, Esq., was ineffective 

for failing to move to sever his case from that of his co-defendant, and for 

failing to advise him that a conviction for a felony drug offense could result 

in deportation proceedings.

“To prevail on a claim alleging counsel’s 

ineffectiveness, Appellant must demonstrate (1) that 

the underlying claim is of arguable merit; (2) that 

counsel’s course of conduct was without a 

reasonable basis designed to effectuate his client’s 

interest; and (3) that he was prejudiced by counsel’s 

ineffectiveness.” Commonwealth v. Wallace, 555 

Pa. 397, 407, 724 A.2d 916, 921 (1999), citing 

Commonwealth v. Howard, 538 Pa. 86, 93, 645 

A.2d 1300, 1304 (1994) (other citation omitted). In 

order to meet the prejudice prong of the 

ineffectiveness standard, a defendant must show 

that there is a “‘reasonable probability that but for 

counsel’s unprofessional errors, the result of the 

proceeding would have been different.’” 

Commonwealth v. Kimball, 555 Pa. 299, 308, 724 

A.2d 326, 331 (1999), quoting Strickland v. 

Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 
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80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’ 

is defined as ‘a probability sufficient to undermine 

confidence in the outcome.’” Id. at 309, 724 A.2d at 

331, quoting Strickland, 466 U.S. at 694, 104 S.Ct. 

2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal 

denied, 832 A.2d 435 (Pa. 2003). “We presume counsel is effective and 

place upon Appellant the burden of proving otherwise. Counsel cannot be 

found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004) 

(citations omitted).

“The decision to sever co-defendants’ trials lies 

within the trial court’s discretion, and will not be 

disturbed absent an abuse thereof.” 

Commonwealth v. Birdsong, 611 Pa. 203, 232, 24 

A.3d 319, 336 (2011).

Joint trials are favored when judicial economy will be 

served by avoiding the expensive and 

time-consuming duplication of evidence, and where 

the defendants are charged with conspiracy.

[T]he mere fact that there is hostility between 

defendants, or that one may try to save himself at 

the expense of another, is in itself not sufficient 

grounds to require separate trials. In fact, it has 

been asserted that the fact that defendants have 

conflicting versions of what took place, or the 

extents to which they participated in it, is a reason 

for rather than against a joint trial because the truth 

may be more easily determined if all are tried 

together.
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Commonwealth v. Akbar, 91 A.3d 227, 231-232 (Pa.Super. 2014), 

quoting Birdsong, supra (internal citations and quotation marks omitted) 

(emphasis deleted).

At trial, the court ruled that appellant’s statement to police that 

Michael’s girlfriend rented the vehicle was inadmissible because it could 

implicate Michael and was a Bruton violation.3 (Notes of testimony, 9/9/10 

at 14-16.) The jury could infer that perhaps Kelly put the marijuana in the 

car or had some part in it, thereby also implicating Michael. (Id.) According 

to appellant, trial counsel should have moved to sever the cases because at 

a separate trial, this statement could have come in as evidence that Michael 

and/or his girlfriend, and not appellant, put the marijuana in the trunk. 

(Appellant’s brief at 16.)

Appellant’s argument ignores the fact that, as stated above, Michael 

also told Trooper Lucia that Kelly, his girlfriend, had rented the vehicle. 

(Notes of testimony, suppression, 2/9/10 at 30-31.) This statement was not 

suppressed. (Notes of testimony, 9/9/10 at 14.) Therefore, the jury heard 

that Kelly was Michael’s girlfriend and the rental agreement was in her 

name. Appellant cannot show how he was prejudiced by counsel’s failure to 

file a severance motion. 

 

3 See Bruton v. U.S., 391 U.S. 123, 135-137 (1968) (admission of a 

facially incriminating confession by a non-testifying co-defendant introduced 

at the defendant and co-defendant’s joint trial, deprives a defendant of his 

Sixth Amendment right to confrontation, even where the court instructs the 

jury to consider the confession only against the co-defendant).
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In addition, the PCRA court states that Michael did file a motion to 

sever which was denied, and appellant’s would have been similarly denied. 

(PCRA court opinion, 9/25/13 at 7.) There was no basis to sever the cases, 

particularly where appellant and Michael were charged as co-conspirators. 

This claim fails.

Finally, appellant argues that trial counsel was ineffective for failing to 

advise him of the immigration consequences of being found guilty of a felony 

drug offense. Apparently, appellant is a Jamaican national and faces 

deportation proceedings as a result of his conviction. Appellant relies on 

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), in which the 

United States Supreme Court held that counsel must inform his client 

whether his plea carries a risk of deportation.

Jose Padilla, a Honduran native who had lived in the 

United States for more than 40 years, pled guilty to 

transportation of a large amount of marijuana, a 

deportable offense under 8 U.S.C. 

§ 1227(a)(2)(B)(i). Padilla, 130 S.Ct. at 1477. 

Padilla claimed that counsel not only failed to advise 

him of the possibility of deportation prior to entering 

the plea, but also told him that he “did not have to 

worry about immigration status since he had been in 

the country so long.” Id. at 1478. Padilla relied on 

counsel’s erroneous advice when he pleaded guilty to 

the drug charges, and alleged in his post-conviction 

petition that he would have gone to trial had he not 

received incorrect advice from his attorney. Id. 

Noting the “unique nature of deportation,” the 

Padilla Court decided that, “The weight of prevailing 

professional norms supports the view that counsel 

must advise her client regarding the risk of 

deportation.” Id. at 1481-1482. The Court found 
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that, although civil in nature, “deportation is 

nevertheless intimately related to the criminal 

process” (id. at 1481), and concluded that “The 

severity of deportation -- ‘the equivalent of 

banishment or exile,’ -- only underscores how critical 

it is for counsel to inform her noncitizen client that 

he faces a risk of deportation.” Id. at 1486, quoting 

Delgadillo v. Carmichael, 332 U.S. 388, 390-391 

(1947) (footnote omitted). Ultimately, the Court in 

Padilla remanded the matter for a determination as 

to whether Padilla could demonstrate that he was 

prejudiced by counsel’s incorrect advice. Id. at 

1487.

Commonwealth v. Wah, 42 A.3d 335, 339-340 (Pa.Super. 2012).

Instantly, appellant’s reliance on Padilla is misplaced where he did not 

enter a guilty plea. Rather, appellant went to trial and was found guilty by a 

jury. Therefore, the Padilla line of cases is inapposite. Appellant argues 

that without knowing about the potential for deportation, appellant could not 

make a knowing and voluntary decision whether to go to trial or try to 

negotiate a plea. (Appellant’s brief at 17.) Appellant contends that if he had 

known he could be deported for a felony drug conviction, he could have tried 

to negotiate a plea to a lesser, non-deportable offense. (Id.) 

However, by taking a plea, Padilla was exposing himself to certain 

deportation. By exercising his right to a jury trial, appellant did not face the 

certainty of being deported. He could conceivably have been found not 

guilty. In addition, appellant has a constitutional right to a jury trial but not 

to enter a plea. The Commonwealth can force a trial if it chooses. Appellant 

has cited no case law for the proposition that the holding in Padilla extends 
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to cases where the defendant is found guilty after a jury trial, and we are 

aware of none. This claim also fails. 

Having determined, for the reasons discussed above, that the PCRA 

court did not err in denying appellant’s petition, and that appellant is not 

entitled to PCRA relief, we will affirm the order. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2014