J-S36044-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

CARLOS PEREZ

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2237 EDA 2022

Appeal from the PCRA Order Entered August 19, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010665-2011

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

MEMORANDUM BY KING, J.: FILED OCTOBER 26, 2023

Appellant, Carlos Perez, appeals from the order entered in the 

Philadelphia County Court of Common Pleas, which denied his first petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”), upon remand from 

this Court.

1

 We affirm.

The relevant facts and procedural history of this case are as follows. On 

July 11, 2013, Appellant entered a negotiated guilty plea to third-degree 

murder, conspiracy, and possessing instruments of crime. In exchange for 

the plea, the Commonwealth recommended a sentence of 20 to 40 years of 

incarceration and agreed to nolle prosse the remaining charges. 

At Appellant’s guilty plea hearing, Appellant acknowledged that his plea 

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1 42 Pa.C.S.A. §§ 9541-9546.
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was based upon the following facts:

On April 15th, 2011[,] the two defendants Angel Suarez, Jr. 

and [Appellant] went to the 3000-block of Water Street here 

in Philadelphia in search for Angel Suarez [Vargas], Sr., the 

[co-]defendant’s father.

* * *

When they arrived on the block, they did find Angel Suarez 

Vargas and engaged him in a physical altercation. During 

that altercation both defendants physically fought Angel 

Suarez Vargas. Another individual on the block by the name 

of Ian Wolbert saw the fight and jumped into the fight to 

help Angel Suarez Vargas.

After the fight stopped, the two defendants left the same 

way they arrived, in a burgundy Honda Accord with a black 

primer door. About 10 minutes later the two defendants 

returned in the same burgundy Honda Accord. This time 

both had firearms. The two defendants saw both Ian 

Wolbert and Angel Suarez Vargas and chased them, and 

both fired their guns in the direction of Ian Wolbert and 

Angel Suarez Vargas. One of those bullets struck a 46-yearold female by the name of Sandra Laboy in her back. Her 

body was transported to Temple Hospital where she was 

pronounced dead. Her remains were taken to the medical 

examiner’s office where she was examined by Dr. Sam 

Gulino. The cause of death was a gunshot wound to her 

back, and he concluded to a reasonable degree of scientific 

certainty that the manner of death was homicide.

* * *

Homicide investigators interviewed a number of witnesses 

in the neighborhood who described four individuals in a 

fight, described two Hispanic males leaving in a burgundy 

Honda Accord and describe[d] those same two individuals 

as coming back and firing guns on the block. Some of those 

witnesses were able to identify Ian Wolbert and Angel 

Suarez Vargas by photo spread but were unable to identify 

the two defendants seated at the bar of the court.

Based on this information[,] on April 17th, 2011[,] members 
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of the Homicide Unit interviewed Ian Wolbert who provided 

a statement identifying Angel Suarez Vargas as the person 

he helped, and also telling Homicide that when the 

defendants had left the scene initially Angel Suarez Vargas 

told Ian Wolbert that one of those people was his son.

On May 2nd, 2011[,] Angel Suarez Vargas was interviewed 

by Homicide, provided a statement detailing what [he had]

just said, and identified both defendants as the defendants 

who were shooting guns on the 3000-block of Water Street.

Those two defendants were placed in photo spreads and on 

May 3rd, 2011[,] both were identified by Ian Wolbert.

On May 11th, 2011[,] affidavits and arrest warrants were 

generated for both defendants. On May 23rd, 2011[,] Angel 

Suarez was arrested on the 2000-block of North 7th Street 

and after being provided his Miranda[2] warnings did 

provide a statement to Homicide admitting to his 

participation in the offense.

On May 31st, 2011[,] at the intersection of Kensington and 

Allegheny[,] [Appellant] was arrested during a routine 

traffic stop. During that stop officers had recognized 

[Appellant] as wanted for murder. [Appellant] attempted to 

flee from the car but was apprehended a short distance 

away.

(N.T. Guilty Plea Hearing, 7/1/13, at 60-63). At the conclusion of the 

summary, Appellant agreed that it was “a fair account of what happened” and 

that he was pleading guilty because he was guilty. (Id. at 64-65). Following 

the plea, the trial court sentenced Appellant to an aggregate sentence of 20

to 40 years of imprisonment. Appellant did not file a direct appeal. 

On June 30, 2014, Appellant timely filed a pro se PCRA petition, 

asserting ineffective assistance of counsel and after-discovered evidence. 

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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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Appellant attached to the petition an affidavit from co-defendant Suarez in 

which he attests that he “had done wrong by putting someone in this position 

that is innocent,” and that a friend known to him as “Pito” participated in the 

shooting. (Pro Se PCRA Petition, 6/30/14, Exhibit 2 at 2 (English Translation 

of co-defendant Suarez’s Affidavit)). Thereafter, the court appointed counsel, 

who filed an amended PCRA petition on May 30, 2017, reasserting these 

claims. The PCRA court dismissed the petition without a hearing on May 21, 

2018. Appellant timely appealed. 

On appeal, a panel of this Court concluded that the PCRA court erred in 

denying Appellant’s after-discovered evidence claim without first conducting 

an evidentiary hearing. This Court concluded that all of Appellant’s other 

claims were meritless. Therefore, this Court vacated the PCRA court’s order 

in part and remanded for an evidentiary hearing limited to the issue of the 

after-discovered evidence claim. See Commonwealth v. Perez, 221 A.3d 

1250 (Pa.Super. 2019) (unpublished memorandum).

The PCRA court detailed the subsequent procedural history as follows:

On September 17, 2021, an evidentiary hearing was held 

with Appellant where Appellant and Co-Defendant [Suarez] 

testified. Appellant’s witness..., Co-Defendant Angel Suarez, 

Jr., testified that an individual named “Pito”, real name Alvin 

Ortiz Del Ollo, Co-Defendant [Suarez’s] brother-in-law, was 

the actual second shooter instead of Appellant. At the time 

of Co-Defendant [Suarez] testifying at the evidentiary 

hearing, Pito was dead, having allegedly been murdered in 

Puerto Rico two years earlier. (N.T. Hearing, 9/17/21, at 

49). On May 12, 2022, Appellant testified at a follow-up 

evidentiary hearing, stating that he pled guilty because he 

was scared that everyone was going to continue lying as 
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they did in their statements and at the preliminary hearing 

and that he did not know that Co-Defendant [Suarez] was 

going to come forward and say that Appellant did not 

commit the shooting in question.

(PCRA Court Opinion, filed 11/10/22, at 3) (citation formatting provided; 

footnote omitted).

On August 19, 2022, the PCRA court denied relief. Appellant filed a 

timely notice of appeal on August 29, 2022. The PCRA court subsequently 

ordered Appellant to file a concise statement of errors complained of on appeal 

per Pa.R.A.P. 1925(b), and Appellant filed his concise statement on September 

27, 2022.

Appellant presents one issue for our review:

Did the PCRA court err by denying [Appellant’s] request for 

PCRA relief in the form of a new trial by concluding that the 

after-discovered evidence would not have compelled a 

different outcome at the stage of the plea negotiations?

(Appellant’s Brief at 5).

We review a PCRA court’s order denying relief to determine whether the 

court’s findings of fact are supported by the record, and whether its legal 

conclusions are free from error. Commonwealth v. Conway, 14 A.3d 101 

108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This 

Court grants great deference to the findings of the PCRA court if the record 

contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 

513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). 

Further, a PCRA court’s credibility determinations should be given great 
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deference; we are bound by the credibility determinations of the PCRA court 

if those determinations are supported by the record. Commonwealth v. 

Johnson, 600 Pa. 329, 345, 966 A.2d 523, 532 (2009).

Appellant argues that if he had known that co-defendant Suarez would 

have testified the other shooter was not Appellant, he would not have pled 

guilty. Appellant insists that the fact that he would not have pled guilty in 

light of co-defendant Suarez’s new testimony is sufficient to satisfy the 

requirements of an after-discovered evidence claim. Appellant concludes the 

PCRA court erred by denying his claim of after-discovered evidence, and this 

Court must grant relief. We disagree. 

A petitioner asserting an after-discovered evidence claim under the 

PCRA must plead and prove that: “‘(1) the evidence has been discovered after 

trial and it could not have been obtained at or prior to trial through reasonable 

diligence; (2) the evidence is not cumulative; (3) it is not being used solely to 

impeach credibility; and (4) it would likely compel a different verdict.’” 

Commonwealth v. Cox, 636 Pa. 603, 614, 146 A.3d 221, 228 (2016) 

(quoting Commonwealth v. D’Amato, 579 Pa. 490, 519, 856 A.2d 806, 823 

(2004)).3 “At an evidentiary hearing, an appellant must show by a 

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3 Although Appellant’s conviction resulted from a guilty plea, rather than a 

trial, the analysis of his claim remains the same. Our Supreme Court has held 

that “any after-discovered evidence which would justify a new trial would also 

entitle a defendant to withdraw his guilty plea.” Commonwealth v. Peoples, 

456 Pa. 274, 275, 319 A.2d 679, 681 (1974). 
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preponderance of the evidence that each of these factors has been met in 

order for a new trial to be warranted.” Commonwealth v. Rivera, 939 A.2d 

355, 359 (Pa.Super. 2007), appeal denied, 598 Pa. 774, 958 A.2d 1047 

(2008) (internal citations omitted). 

In making the determination of whether after-discovered evidence 

would likely compel a different verdict, “a court should consider the integrity 

of the alleged after-discovered evidence, the motive of those offering the 

evidence, and the overall strength of the evidence supporting the conviction.” 

Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa.Super. 2010). Where 

the alleged after-discovered evidence is recantation testimony, “the PCRA 

court must, in the first instance, assess the credibility and significance of the 

recantation in light of the evidence as a whole.” Commonwealth v. Small, 

647 Pa. 423, 450–51, 189 A.3d 961, 977 (2018) (quoting D’Amato, supra

at 523, 856 A.2d at 825). “Unless the [PCRA] court is satisfied that the 

recantation is true, it should deny a new trial.” Commonwealth v. Henry, 

550 Pa. 346, 363, 706 A.2d 313, 321 (1997) (citations omitted).

Further,

an appellate court may not interfere with the [PCRA court’s 

decision regarding] a new trial where the sole ground is the 

alleged recantation of state witnesses unless there has been 

a clear abuse of discretion. Additionally, the deference 

normally due to the findings of the PCRA court is 

accentuated where what is involved is recantation 

testimony. As such, it was within the exclusive province of 

the PCRA court to determine the credibility of [the witness’s]

recantation. Finding no clear abuse of discretion on the part 

of the PCRA court in making its credibility determination, 
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this Court is bound to accept it.

Commonwealth v. Medina, 92 A.3d 1210, 1219 (Pa.Super. 2014), appeal 

dismissed as improvidently granted, 636 Pa. 77, 140 A.3d 675 (2016)

(citations, internal quotation marks, and original brackets omitted). 

Instantly, in denying Appellant’s claim of after-discovered evidence, the 

PCRA court found that co-defendant Suarez’s testimony lacked the indicia of 

reliability. The court explained that the statement and testimony at the PCRA 

hearing, “by nature of being recantation, were incredibly unreliable and were 

also riddled with inconsistencies refuted by the available record.” (PCRA Court 

Opinion at 7). The PCRA court noted that both defendants pled guilty after 

hearing the factual basis for their plea. The court explained that co-defendant 

Suarez’s explanation as to why he originally said that Appellant was involved 

in the shooting was “incredibly weak.” (Id. at 11). Specifically:

Co-Defendant Angel Suarez Jr. alleged in his affidavit that 

he went along with a story concocted by his father to blame 

Appellant as a way of helping himself out of the trouble he 

was in for shooting at his father. However, Co-Defendant 

Angel Suarez Jr. blaming Appellant for the shooting does not 

explain why Co-Defendant Angel Suarez Jr. would then still 

plead guilty. ...[T]his shows that Co-Defendant Angel 

Suarez Jr.’s justifications for lying were incredibly weak and 

this...new ‘truth’ had no indicia of reliability.

(Id.) Moreover, the court then explained that co-defendant Suarez’s 

statement was contradicted by the available record, stating:

Both Co-Defendant Angel Suarez Jr.’s father and Ian 

Wolbert identified Co-Defendant Angel Suarez Jr. and 

Appellant as the shooters, undercutting the new allegation 

that “Pito” was the second shooter. Contrary to what Co-
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Defendant Angel Suarez Jr. stated, neighbors who 

witnessed the shooting only saw two individuals, not three. 

Those same neighbors also saw the shooters running toward 

Co-Defendant Angel Suarez Jr.’s father and Ian Wolbert 

while firing their weapons, not away from the victims as CoDefendant Angel Suarez Jr. alleged in his affidavit.

(Id.)

Upon our review of the record, we see no clear abuse of discretion by 

the PCRA court in rejecting co-defendant Suarez’s statement as incredible. 

See Medina, supra. As the PCRA court noted, the evidence of Appellant’s 

guilt included the testimony of two eyewitnesses who identified Appellant as 

the shooter soon after the shooting. Assessing this evidence against codefendant Suarez’s incredible conflicting account, the record supports the 

court’s decision to deny relief. See Small, supra; Henry, supra. 

Accordingly, we affirm.

Order affirmed. 

Date: 10/26/2023