COMMONWEALTH of Pennsylvania, Appellee, v. Cornell GALLOWAY, Appellant.
Superior Court of Pennsylvania.
April 12, 1994.
640 A.2d 454
Submitted Nov. 10, 1993.
Joseph C. Madenspacher, Dist. Atty., Lancaster, for Com., appellee.
Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
This is an appeal from the order of the Court of Common Pleas of Lancaster County which dismissed appellant‘s petition for post-conviction relief filed pursuant to the Post Conviction Relief Act,
Herein, appellant contends that he is entitled to a new trial. He argues that the lower court erred in refusing to apply retroactively Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), which bars the admission of hypnotically-induced testimony. See,
The record reveals that on August 2, 1969, Daniel Gebhard and Barry Kimmet were slain in related drive-by shootings. Those shootings were the result of racial unrest in the city of Lancaster.1 Appellant and numerous other black persons traveled in at least two vehicles to the area of Bleacher‘s Cafe, where certain white persons who allegedly threatened other black persons, were said to be waiting to fight. At trial, appellant admitted to being in the one of the automobiles when the men were shot. However, he denied having pos-
The Commonwealth presented the testimony of Dorothy Easley who was driving one of the two vehicles which participated in the shootings. She testified that she saw appellant lean out of the front passenger window of the other vehicle with a rifle in his hand, take aim and shoot. She also testified that afterwards, she heard appellant say to his brother Lorenzo that “I got one, and you got the other.”
It is important to note that the shootings took place almost eight years prior to the trial. That fact is significant because appellant only recently became aware that Dorothy Easley was hypnotized prior to trial to refresh her recollection of the long-past event. The Commonwealth acknowledges that Ms. Easley was hypnotized approximately six months prior to trial by John B. Shenk. However, the Commonwealth avers it possesses no other information concerning the event. It is undisputed that neither appellant nor his counsel was informed of the hypnosis prior to trial.2
First, we will address appellant‘s contention that he is entitled to a new trial because the Commonwealth introduced the testimony of Dorothy Easley whose recollection of the events of August 2, 1969, were hypnotically refreshed prior to trial. Appellant correctly notes that in Nazarovitch, supra, our Supreme Court held that a witness’ hypnotically-refreshed testimony was properly excluded where the witness had no recollection of the facts which would have been the subject of the testimony prior to the hypnosis. Our Supreme Court again rejected the use of hypnotically-induced testimony in Commonwealth v.Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984). See also, Commonwealth v. DiNicola, 348 Pa.Super. 405, 502 A.2d 606 (1985), cert. denied, 484 U.S. 1028, 108 S.Ct. 755, 98 L.Ed.2d 768 (1988); Commonwealth v. Reed, 400 Pa.Super. 207, 583 A.2d 459 (1990), allocatur denied, 528 Pa. 629, 598 A.2d 282 (1991); Commonwealth v. McCabe, 303 Pa.Super. 245, 449 A.2d 670 (1982).3
Despite the fact that hypnotically-refreshed testimony is generally not admissible, appellant is not entitled to post-conviction relief on the basis of the rule of evidence set forth in Nazarovitch, supra. “[A] new rule of law to which we give retroactive effect, will not be applied to any case on collateral review unless that decision was handed down during the pendency of an appellant‘s direct appeal and the issue was properly preserved there, or, as here, is non-waivable.” Commonwealth v. Gillespie, 512 Pa. 349, 355, 516 A.2d 1180, 1183 (1986). See also, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (setting forth the federal rule for retroactive application of new law in collateral proceedings); Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989) (applying Gillespie); Commonwealth v. Riggins, 374 Pa.Super. 243, 255, 542 A.2d 1004, 1010 (1988), allocatur denied, 522 Pa. 583, 559 A.2d 527 (1989) (applying Gillespie and citing cases). Nazarovitch, supra, was decided by our Supreme Court on October 29, 1981, and appellant‘s conviction became final when our Supreme Court affirmed his judgment of sentence on September 24, 1981. See, Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981). Thus, appellant is not entitled to post-conviction collateral relief since his criminal judgment was final prior to the Supreme Court‘s
Appellant also claims that he is entitled to a new trial because the recently-discovered evidence of Ms. Easley‘s hypnosis constituted “exculpatory evidence [unavailable at the time of trial] that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.”
Despite our refusal to grant relief based on appellant‘s first two assertions of error, we nevertheless conclude that appellant has presented a meritorious claim that the Commonwealth impermissibly violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963), wherein the United States Supreme Court held: “[T]he suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith
In Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, 108 (1972), the United States Supreme Court, quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217, 1220 (1959), clearly stated: “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general [Brady] rule.” Thus, at the time of appellant‘s trial, the Commonwealth was required to provide appellant with information in its possession which impacted upon the credibility of its witnesses. We are convinced that the evidence of Ms. Easley‘s hypnosis is clearly evidence affecting credibility.7
However, to be entitled to a new trial under Brady, supra, and its progeny, the evidence affecting credibility must be material. See also, Giglio, supra; Agurs, supra; Commonwealth v. Wallace, 500 Pa. 270, 275-80, 455 A.2d 1187, 1190-1192 (1983); Commonwealth v. Rose, 483 Pa. 382, 393-97, 396 A.2d 1221, 1227-1229 (1979); Commonwealth v. Cain, 471 Pa. 140, 152, 369 A.2d 1234, 1240 (1977); Commonwealth v. Floyd, 259 Pa.Super. 552, 557-558, 393 A.2d 963, 966-967 (1978). In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the United States Supreme Court, after reviewing Brady, supra, and its progeny, concisely defined “materiality” as follows:
The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.8
Thus, we are required herein to determine whether there is a reasonable probability that, had the jury been permitted to weigh the testimony of Dorothy Easley in light of her hypo-
Instantly, both the lower court and the Commonwealth submit that there is “no reasonable probability that the result of the proceeding would have been different” had appellant been able to impeach Ms. Easley on the basis of her hypnosis. In support thereof, the lower court and the Commonwealth note that Ms. Easley was “only one of twenty-five witnesses called by the Commonwealth who implicated petitioner in the double murder for which he was convicted and thus the Commonwealth did not rely ‘almost entirely’ on her testimony ...” Trial Court Opinion, pp. 6-7. However, such a summation distorts the facts with respect to the death of Daniel Gebhard.
It is undisputed that appellant was involved in the racial violence and the two murders which took place on the evening of August 2, 1969. Appellant admitted that he and his brother Lorenzo Galloway helped to organize the group of blacks who later drove through Lancaster and shot Daniel Gebhard and Barry Kimmet. N.T., p. 1407-1410. Appellant admitted he was seated in the front right passenger seat of one of the cars. He also stated that Jonathan Evans was driving the car, Robert Hobbs was seated in the middle of the front seat, and Lorenzo Galloway, Dale Troop and Barry Wright were seated in the back seat, with Lorenzo located directly behind him in the right rear seat. N.T., pp. 1411-1412. He admitted he was seated in the car when the shots were fired by someone in the back seat, although he stated he did not see who fired the shots. N.T., pp. 1411, 1421. Appellant later attributed the shots to his brother Lorenzo Galloway.
Jonathan Evans also testified that he was driving the car in which Robert Hobbs, Barry Wright, Dale Troop, Lorenzo Galloway and appellant were passengers and that only he and Hobbs were seated in the front seat. N.T., pp. 1089-1090. He further testified that he heard shots fired from the back seat of the car.9 However, he never saw any weapons and, more importantly, did not see who fired the shoots. N.T., p. 1091.
Barry Wright agreed that he, appellant, Lorenzo Galloway, Jonathan Evans, Dale Troop and Robert Hobbs were in Hobbs’ car. Wright testified that Dale Troop was in the left rear seat, Lorenzo Galloway was in the middle of the rear seat and he was in the right rear seat., N.T., pp. 1141. Wright testified that he possessed a shotgun, Troop had a pistol and Lorenzo Galloway had a Winchester rifle. N.T., p. 1142. Wright also admitted to having discharged his weapon. N.T., p. 1143. Wright stated that after firing his gun, he ducked to
Dale Troop testified that he, Barry Wright and Lorenzo Galloway were seated in the back of the Hobbs’ car, and appellant was seated in the right front seat. N.T., pp. 1318-1319. He testified that he heard shots fired from the car, but that he did not see who fired the shots. N.T., p. 1319. He also testified that he possessed a thirty-eight caliber revolver and Lorenzo Galloway possessed either a rifle or a shotgun. N.T., p. 1336.
Lorenzo Galloway was deceased at the time of the trial. Other than those persons in Hobbs’ vehicle. Dorothy Easley was the Commonwealth‘s most significant witness, and, certainly, in regards to the death of Daniel Gebhard, she was the Commonwealth‘s key witness against appellant. Ms. Easley testified, inter alia, that she was driving the vehicle which was following appellant and the Hobbs vehicle. N.T., p. 1203. She stated that she saw appellant lean out of the car window with a gun and fire a shot. N.T., p. 1204. She also testified that she had earlier seen both appellant and Lorenzo Galloway in possession of rifles. N.T., p. 1205. Finally, Ms. Easley stated that, after the shooting, she overheard appellant say to his brother Lorenzo, “I got one and you got the other one. You know, I had to come and get you [Lorenzo] because none of these other hilly mother fuckers are going to do anything and I know that and nobody has any heart but you and me.” N.T., p. 1207. She also said that appellant and Lorenzo Galloway admitted to the killings on other occasions. N.T., pp. 1208, 1209. She also testified that in exchange for her testimony, she was hoping for a reduction of a federal bank robbery sentence she was serving.
It is undisputed that appellant was not the person who shot Barry Kimmet, and he was convicted as a principal in the second degree in the first degree murder of Mr. Kimmet. As the preceding recitation of the facts and other trial testimony reveals, appellant was undoubtedly an active participant in both of the shootings and the only significant question was whether he was the “trigger man” in the murder of Daniel Gebhard. The testimony of Dorothy Easley, albeit prejudicial to appellant‘s case, was not crucial to appellant‘s conviction for first degree murder of Barry Kimmet as a principal in the second degree. Even if appellant had been able to impeach Ms. Easley‘s credibility with evidence of hypnosis, other evi-
However, as to appellant‘s other conviction, we conclude that evidence of the hypnosis of Ms. Easley‘s was material under Bagley, supra, and, therefore, the Commonwealth‘s failure to disclose that information mandates that we grant appellant a new trial on the charge of first degree murder of Daniel Gebhard. The record clearly reveals that Ms. Easley was the only witness to state that she saw appellant possess and shoot a gun. She also was only one of two witnesses to testify that she heard appellant admit to shooting Mr. Gebhard.12 Ms. Easley was clearly the Commonwealth‘s key witness in the death of Mr. Gebhard. Thus, it was crucial to appellant‘s defense to impeach the reliability of her recollection of the night in question, especially in light of the fact that the trial took place over seven years after the shootings.
We are convinced that there is a reasonable probability that had evidence of Ms. Easley‘s hypnosis along with testimony concerning the questionable nature of hypnotically-refreshed recollection been admitted, the result of appellant‘s trial for the first degree murder of Daniel Gebhard would have been different. Bagley, supra. Presented with such information, the jury could have legitimately inferred that Ms. Easley‘s recollection of the event was a product of the hypnosis and not what she truly saw, and, thus, there would have been no
PCRA order affirmed in part and reversed in part. Case remanded for further proceedings in accordance with this opinion. Jurisdiction relinquished.
WIEAND, J., files a concurring and dissenting opinion.
WIEAND, Judge, concurring and dissenting.
I concur in the majority‘s decision to reverse the order of the P.C.R.A. court and grant appellant, Cornell Galloway, a new trial on the charge of first degree murder in connection with the killing of Daniel Gebhard. The Commonwealth‘s failure to disclose the pre-trial hypnosis of Dorothy Easley, its key witness, was a violation of the prosecution‘s obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
Having reached this conclusion, however, I am unable to agree with the majority that a different result should be reached with respect to appellant‘s conviction for the murder of Barry Kimmet. After a careful reading of the record of appellant‘s trial, I am not persuaded that appellant‘s role as an accomplice in this murder was established by overwhelming evidence apart from the testimony of Dorothy Easley. In my judgment, Easley‘s testimony that she observed appellant in possession of and firing a weapon, as well as her testimony as to inculpatory statements made by appellant following the killings of Gebhard and Kimmet, was crucial to the Commonwealth‘s ability to prove that appellant acted with a specific intent to kill. Without this evidence a jury might well have been unable to find appellant guilty of first degree murder as an accomplice in the killing of Barry Kimmet. Cf. Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994) (an accomplice must possess the specific intent to kill in order to be found guilty of first degree murder, as the guilt of an accomplice cannot be premised solely upon the mental state of the principal). I am constrained to conclude, therefore, that the Commonwealth‘s failure to disclose the pre-trial hypnosis of Dorothy Easley was also material to the charge that appellant was an accomplice in the murder of Barry Kimmet. Accordingly, appellant should also be awarded a new trial on this charge.
Notes
It is this less “severe burden“, discussed infra, that explains why appellant may prevails upon his Brady claim while his after-discovered evidence claim provides no relief.On the one hand, the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State‘s possession as when it was found in a neutral source, there would be no special significance to the prosecutor‘s obligation to serve the cause of justice. (Footnote omitted.)