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 : : : : : : : : : 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 STRASSBURGE R, J.: FILED: JANUARY 8, 2021
Tyreek Corbett (Appellant) appeals from the June 2, 2017 order

d ismissing his petition filed pursuant to the Post Conviction Relief Act
(PC RA), 42 Pa.C.S. §§ 9541

- 9546. On September 10, 2019, we remanded

the case for the PCRA court to determine whe ther 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 underl ying 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

.J

- S350 41

- 19

- 2

- Following a jury trial, Appellant was convicted of first

degree murder, possessing an instrument of c rime, and cri minal 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 Super. 2000) (unpublished memorandum), appeal denied , 764 A.2d 1064 (Pa. 2000).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 Super. 2005) (unpublished memorandum), appeal denied , 895 A.2d 1259 (Pa. 2006).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 th at his petition was timely filed pursuant to the newly

discovered facts ex ception 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 Appella nt 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

- disc overed 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 B utler 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 T a u ber. Therefore, on August 11, 2017, this Court issued an order directing Attorney Tauber to show cause why he was notJ

- S350 41

- 19

- 3

-

counsel of re cord. Per Curiam Order, 8/11/2017. Attorney Tauber responded, notifying this Court that he advised Appellant
o f 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 o f litigating the PCRA petition. As such , r elying 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 merit s 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 require d. 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.C rim.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. 1 20(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 Ta uber’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).J

- S350 41

- 19

- 4

-

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 b oth Appellant and the PCRA court complied with Pa.R.A.P.

1 925. 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 e xamining 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 th e PCRA court level

. The PCRA court’ s credibility determinations, when supported by the
reco rd, are binding on this Court. However, this Court applies
a de novo standard of review to the P CRA 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 lo gic for Appellant to argue that trial counsel rendered ineffective assistance of counsel in this regard. Accordingly, we need not consider this argument further.J

- S350 41

- 19

- 5

-

In reviewing ineffective assistance of counsel claims, we presume counsel is effective. To overcome this presumption,
a PCRA petitioner must show the underlying claim h as 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 mee t a four

prong 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 warrante d.

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 believe d his testimony.” Appellant’s Brief at 11. In support
thereof, Appe llant 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 Cou rt

remanded to the PCRA court and held thatJ

- S350 41

- 19

- 6

-

the question for the PCRA court is not whether the jury in fa ct 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 m ost 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, t hat 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 reco rd, are binding on this Court.”).

F ollowing an evidentiary hearing, the PCRA court found that Oliver a nd

Butler were not credible

. PCRA Supplemental Opinion, 12/13/2019, at 6

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

the ir testimony incredible. See id. at 7

- 9. Because the PCRA court’s

determination that Oliver and Butl er 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 j ury would have

credited it and rendered a more favorable verdict. ” Johnson , 966 A.2d atJ

- S350 41

- 19

- 7

-

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