J-S14040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NUTTA VERDIER : : Appellant : No. 1440 EDA 2018 Appeal from the PCRA Order April 19, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008626-2010

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 1, 2019 Nutta Verdier (Verdier) appeals from the order entered by the Court of Common Pleas of Philadelphia County (PCRA court) dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

We take the following relevant facts and procedural history from the PCRA court’s April 19, 2018 opinion and our independent review of the record.

On October 12, 2012, a jury convicted Verdier of Third-Degree Murder, Attempted Murder, Conspiracy, Aggravated Assault, Firearms Not to be Carried Without a License, and Possession of an Instrument of a Crime.1 Verdier’s conviction stems from his role in a shoot-out involving three co- conspirators on a Philadelphia street, during which a bystander was shot and ____________________________________________

____________________________________ * Retired Senior Judge assigned to the Superior Court.

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killed and another injured. The trial court sentenced Verdier to an aggregate term of not less than nineteen and one-half nor more than sixty years of imprisonment. Following reinstatement of his direct appeal rights nunc pro tunc,2 we affirmed the judgment of sentence on September 11, 2017. Verdier did not seek further review in our Supreme Court.

Verdier, acting pro se, filed the instant, timely PCRA petition on November 8, 2017, and appointed counsel subsequently filed an amended petition. Verdier claimed a right to relief based on after-discovered evidence in the form of affidavits prepared by his co-conspirator turned Commonwealth witness Jacque Warren and his brother, Sharif Warren. At trial, Jacque Warren testified that Verdier, along with his co-conspirators, shot at a rival and the bystander was killed in the crossfire. However, in his affidavit, dated May 27, 2015, Jacque Warren recants this testimony and avers that Verdier was not present when the shooting took place. (See J. Warren Affidavit, 5/27/15).

Sharif Warren’s statement similarly avers that when he visited his brother in prison in 2011, Jacque conceded that Verdier was innocent and was not present at the scene of the shooting. (See S. Warren Statement, 8/05/13).

Sharif’s statement is dated August 5, 2013.

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After issuing notice of its intent to do so3, the PCRA court entered an order and opinion dismissing Verdier’s petition.4 He then filed this appeal arguing that the PCRA court erred in denying relief on his claim of after- discovered evidence based on Jacque Warren’s recantation statements and that the PCRA Court improperly denied his PCRA counsel’s request for a continuance.5 ____________________________________________

Because every element of Warren’s account is directly contradicted by the physical evidence and eyewitness accounts, his recantation is incredible.

Trial Court Opinion pp. 12-13.

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We begin by addressing Verdier’s claim that the PCRA court erred in denying relief on his claim of after-discovered evidence based on Jacque Warren’s recantation statements. The PCRA makes clear that that to be eligible for relief, a petitioner must plead and prove that “the allegation of error has not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). “[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b). With respect to after- discovered evidence, Pennsylvania Rule of Criminal Procedure 720 provides: “A post-sentence motion for a new trial on the ground of after-discovered evidence must be filed in writing promptly after such discovery.” Pa.R.Crim.P. 720(C). Accordingly, “after-discovered evidence discovered during the direct appeal process must be raised promptly during the direct appeal process, and should include a request for a remand to the trial judge[.]” Id., Comment.

Here, the affidavits from Jacque Warren and Sharif Warren, which form the basis for Verdier’s after-discovered evidence claim, are dated May 27, 2015, and August 5, 2013, respectively. During that timeframe, Verdier had been convicted and sentenced and was pursuing a direct appeal. Because he failed to raise the claim of after-discovered evidence on direct appeal as ____________________________________________

(Pa. 2018) (citation omitted). “The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.” Id. (citation omitted).

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required under Rule 720(C), Verdier has waived it on collateral review. See Pa.R.Crim.P. 720(C); Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 2002), cert denied, 540 U.S. 1150 (2004) (claims that could have been raised on direct appeal but were not are waived under PCRA and cannot offer basis for relief). He is, therefore, not eligible for relief on this basis. See 42 Pa.C.S.

§ 9543(a)(3).6 Verdier also challenges the PCRA court’s denial of his counsel’s request for a continuance, which he claims was necessary to review trial counsel’s file to investigate a potential ineffectiveness claim. (See Verdier’s Brief, at 21- 24).

Appellate review of a PCRA court’s continuance decision is deferential.

See Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014). “The decision to grant a continuance is within the sound discretion of the trial court,

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Trial Court’s Opinion p. 14.

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and we will reverse only if the court has abused its discretion.”

Commonwealth v. Paddy, 15 A.3d 431, 470 (Pa. 2011) (citation omitted). “[A]n abuse of discretion is not merely an error of judgment. Rather, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record. . . .” Brooks, supra at 469 (citation omitted).

Here, the record reflects that the PCRA court had already granted counsel for Verdier a continuance of over a month when counsel made another request for a continuance. The court denied the request because “counsel has failed to show why a continuance was necessary, or that he took reasonable efforts to secure the information that he alleges is required.” (PCRA Court Opinion, 4/19/18, at 16). After review of the record, we discern no abuse of discretion in the PCRA court’s denial of Verdier’s request for a second continuance. See Paddy, supra at 470.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/1/19

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