J-S35041-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

TYREEK CORBETT,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 2040 EDA 2017

Appeal from the PCRA Order June 2, 2017

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-1007721-1997

BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED: JANUARY 8, 2021

Tyreek Corbett (Appellant) appeals from the June 2, 2017 order 

dismissing his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. On September 10, 2019, we remanded 

the case for the PCRA court to determine whether Appellant is entitled to 

appointed counsel for this appeal. The court has appointed counsel, and 

Appellant’s case is now ready for disposition. Upon review, we affirm.

By way of background, in our September 10, 2019 memorandum, we 

detailed the underlying facts and procedural history of this case.

On November 17, 1996, Appellant and Anthony Baker fired 

numerous shots at James Ward, Cleveland Scott, Eric Woodson, 

and Leroy DeShield. Ward died as a result of the gunshot 

wounds. Scott identified Appellant as one of the shooters, and 

another eyewitness identified Appellant as being at the scene, 

standing over Ward’s body after the shooting. 
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Following a jury trial, Appellant was convicted of firstdegree murder, possessing an instrument of crime, and criminal 

conspiracy. Appellant was sentenced to life imprisonment for the 

murder conviction, followed by an aggregate term of 

incarceration of 8 to 16 years on the remaining convictions. On 

appeal, this Court affirmed Appellant’s judgment of sentence, 

and our Supreme Court denied his petition for allowance of 

appeal on November 1, 2000. Commonwealth v. Corbett, 761 

A.2d 1231 (Pa. Super. 2000) (unpublished memorandum), 

appeal denied, 764 A.2d 1064 (Pa. 2000).

Appellant, through counsel, timely filed his first PCRA 

petition on October 24, 2001, and a supplemental amended 

petition on April 15, 2003. The PCRA court dismissed the petition 

without a hearing. On appeal, this Court affirmed that order, and 

our Supreme Court denied his petition for allowance of appeal.

Commonwealth v. Corbett, 888 A.2d 3 (Pa. Super. 2005) 

(unpublished memorandum), appeal denied, 895 A.2d 1259 (Pa. 

2006).

On July 25, 2014, Appellant, through privately-retained

counsel, Alan Tauber, Esquire, filed the instant PCRA petition, 

claiming that his petition was timely filed pursuant to the newlydiscovered facts exception to the PCRA’s time-bar. Specifically, 

Appellant claimed that he filed his petition within 60 days of 

learning of an alleged eyewitness, Vernon Oliver, who would 

testify that Appellant was not one of the shooters. Additionally, 

Appellant argued that he was entitled to relief based on this 

after-discovered evidence. PCRA Petition, 7/25/2014, at 2-4. 

Appellant subsequently filed an amended PCRA petition, adding 

another newly-discovered fact and after-discovered evidence 

claim regarding another eyewitness, Eric Butler. Amended PCRA 

Petition, 9/18/2014, at 3-5.

The PCRA court held an evidentiary hearing on Appellant’s 

after-discovered evidence claims on March 9, 2017. Oliver and 

Butler testified at the hearing. On June 2, 2017, the PCRA court 

dismissed Appellant’s PCRA petition. This timely-filed pro se 

appeal followed.

 

Although Appellant pro se filed a notice of appeal, the 

record indicated that Appellant was still represented by Attorney 

Tauber. Therefore, on August 11, 2017, this Court issued an 

order directing Attorney Tauber to show cause why he was not 
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counsel of record. Per Curiam Order, 8/11/2017. Attorney 

Tauber responded, notifying this Court that he advised Appellant 

of his appellate rights following the PCRA court’s dismissal of his 

PCRA petition. Additionally, Attorney Tauber advised Appellant 

that pursuant to their engagement agreement, he had been 

retained solely for purposes of litigating the PCRA petition. As 

such, relying on the terms of the engagement agreement, 

Appellant pro se filed the instant notice of appeal, and Attorney 

Tauber did not seek formally to withdraw as counsel before the 

PCRA court. Response, 8/28/2017. On October 2, 2017, Attorney 

Tauber filed a request for leave to withdraw as counsel with this 

Court, which this Court granted. Per Curiam Order, 10/23/2017. 

Commonwealth v. Corbett, 221 A.3d 1241 (Pa. Super. 2019) 

(unpublished memorandum at 1-3) (footnote omitted).

Prior to reaching the merits of Appellant’s appeal, we considered 

whether Appellant was properly proceeding pro se.

Although this was Appellant’s second PCRA petition, he may 

have had a rule-based right to counsel, as the PCRA court 

determined that an evidentiary hearing was required. However, 

because Appellant retained private counsel prior to filing his 

petition, the PCRA court did not determine whether Appellant 

was unable to afford or otherwise procure counsel, which would 

have entitled him to appointed counsel pursuant to Pa.R.Crim.P. 

904(D). 

Ordinarily, and despite any purported engagement 

agreement, once privately-retained counsel enters an 

appearance, counsel is obligated to continue representation 

through direct appeal or until granted permission to withdraw. 

Pa.R.Crim.P. 120(A)(4), (B)(1). Attorney Tauber did not seek to 

withdraw until after Appellant pro se filed the instant notice of 

appeal and this Court directed Attorney Tauber to show cause as 

to why he was not counsel of record. Although this Court granted 

Attorney Tauber’s petition to withdraw, if Appellant is unable to 

afford or otherwise procure counsel, his rule-based right to 

counsel for his second PCRA petition remains in effect on appeal. 

See Pa.R.Crim.P. 904(D) and (F)(2). 
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Id. (unpublished memorandum at 4-5). Accordingly, this Court remanded to 

the PCRA court to determine whether Appellant was entitled to counsel for 

this appeal and to file a supplemental opinion. The PCRA court appointed 

counsel, and both Appellant and the PCRA court complied with Pa.R.A.P. 

1925. Thus, we may now reach the merits of Appellant’s appeal.

On appeal, Appellant argues that the PCRA court erred in failing to 

conduct a proper assessment of the credibility of Oliver and Butler, and that 

PCRA counsel rendered ineffective assistance by failing to request a proper 

credibility assessment be conducted by the PCRA court. Appellant’s Brief at 

10-11.

1 We review this claim mindful of the following.

Our review of a PCRA court’s decision is limited to examining 

whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. Our scope of review is limited to the findings of the PCRA 

court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the PCRA court level. The 

PCRA court’s credibility determinations, when supported by the 

record, are binding on this Court. However, this Court applies 

a de novo standard of review to the PCRA court’s legal 

conclusions.

Commonwealth v. Johnson, 51 A.3d 237, 242-43 (Pa. Super. 2012) (en 

banc) (citations, quotation marks, and brackets omitted).

 

1 Appellant also argues that trial counsel was ineffective for failing to request 

the PCRA court conduct a proper credibility assessment. Appellant’s Brief at 

10-11. Because the alleged deficiencies occurred during Appellant’s PCRA

proceedings, it defies logic for Appellant to argue that trial counsel rendered 

ineffective assistance of counsel in this regard. Accordingly, we need not 

consider this argument further.
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In reviewing ineffective assistance of counsel claims, we 

presume counsel is effective. To overcome this presumption, 

a PCRA petitioner must show the underlying claim has arguable 

merit, counsel’s actions lacked any reasonable basis, and 

counsel’s actions prejudiced the petitioner. Prejudice means that, 

absent counsel’s conduct, there is a reasonable probability the 

outcome of the proceedings would have been different. A claim 

will be denied if the petitioner fails to meet any one of these 

prongs.

Commonwealth v. Brown, 235 A.3d 387, 391 (Pa. Super. 2020) 

(quotation marks, citations, and brackets omitted). Finally,

[t]o warrant relief, after-discovered evidence must meet a fourprong test: (1) the evidence could not have been obtained

before the conclusion of the trial by reasonable diligence; (2) the 

evidence is not merely corroborative or cumulative; (3) the 

evidence will not be used solely for purposes of impeachment;

and (4) the evidence is of such a nature and character that a 

different outcome is likely. At an evidentiary hearing, an 

appellant must show by a 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) (citation 

omitted).

On appeal, Appellant argues that Oliver and Butler testified credibly, 

and that “the PCRA court should have done a witness credibility assessment 

of [Butler] and believed his testimony.” Appellant’s Brief at 11. In support 

thereof, Appellant relies on Commonwealth v. Johnson, 966 A.2d 523 

(Pa. 2009). Id. at 10. In Johnson, after reviewing an after-discovered 

evidence claim based upon recantation testimony, our Supreme Court 

remanded to the PCRA court and held that
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the question for the PCRA court is not whether the jury in fact 

would have credited [Johnson’s] new evidence and his recast 

alibi evidence. Instead, the question is whether the nature and 

quality of the evidence is such that there is a reasonable 

probability that the jury would have credited it and rendered a 

more favorable verdict. That assessment must include a 

recognition of the impeachability of the witnesses, and not 

merely a viewing of their testimony in a most favorable light. 

Some witnesses may display a demeanor, or be subject to such 

strong impeachment ... that the court is convinced that no 

reasonable jury would believe them. On the other hand, some 

witnesses may conduct themselves, or be of such repute, that 

the PCRA judge has substantial confidence that a jury would 

credit them.

966 A.2d at 542. 

Upon review, it is evident that the PCRA court conducted an 

appropriate credibility assessment for both witnesses, and that its 

determinations were supported by the record. Johnson, 51 A.3d at 242-43 

(citation and quotation marks omitted) (“The PCRA court’s credibility 

determinations, when supported by the record, are binding on this Court.”). 

Following an evidentiary hearing, the PCRA court found that Oliver and 

Butler were not credible. PCRA Supplemental Opinion, 12/13/2019, at 6. In 

its supplemental opinion, the PCRA court detailed specifically why it found 

their testimony incredible. See id. at 7-9. Because the PCRA court’s 

determination that Oliver and Butler lacked credibility is supported by the 

record, the PCRA court did not err in determining that Appellant’s proposed 

after-discovered evidence, if presented to a jury, was not of such a nature 

and quality “that there is a reasonable probability that the jury would have 

credited it and rendered a more favorable verdict.” Johnson, 966 A.2d at 
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542. As such, counsel cannot be deemed ineffective for failing to request a 

credibility assessment. Accordingly, Appellant is not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/8/21