Lead Opinion
Dontez Perrin (Appellant) appeals from his November 16, 2010 judgment of sentence of an aggregate term of five to ten years’ imprisonment following his convictions for aggravated assault, robbery, criminal conspiracy, and possession of an instrument of crime.
At approximately 7:00 P.M. on November 14, 2007, Rodney Thompson delivered a pizza to apartment 1-A of a building in the Bartram Gardens housing development in Philadelphia. When the door to the apartment opened, Thompson was greeted by twо armed men whose faces were mostly covered. Thompson recognized both men, later identified as Lynwood Perry and Amir Jackson, from seeing them in or around the pizza shop. A third man, whom Thompson had not seen before, came up behind Thompson and pushed him through the door, placing what felt like a gun against the back of Thompson’s head. Perry and Jackson took the cash from Thompson’s pockets; Jackson hit Thompson in thе head with his gun; and then the third man helped Thompson to his feet and instructed him to leave.
Thompson reported the incident to the police and went to the hospital, where he received seven stitches in his head. The following day, Thompson gave a statement to the police and viewed photographs, from which he picked out Perry, Jackson, and Appellant as the perpetrators of the robbery. Appellant, whо is 6'2" tall and weighs 260 pounds, was arrested the next day sporting a full beard.
Thompson attended a line-up on March 11, 2008. Prior to viewing individuals to attempt to pick out the perpetrators of the robbery, Thompson, who is 6' tall, described the third individual as being between 5'8" and 5'10" tall, weighing between 140 and 155 pounds, and having no facial hair. Thompson selected an individual other than Appellant from the lineup.
At trial, Thompson and Perry testified that Appellant was thе third man involved in the robbery. Thompson was unclear about how much of the face of the man behind him he was able to see during the robbery and whether that individual had any facial hair, but maintained that Appellant was that man.
Perry acknowledged that he was testifying for the Commonwealth pursuant to a deal with the federal government, by which he could receive a significantly lighter sentence for federal charges stemming from his participatiоn in the instant and other robberies in exchange for his cooperation with the prosecution. Perry testified that he first met Jackson and Appellant one week before the robbery. Jackson called Perry on the day of the robbery and asked Perry if he wished to participate. Perry went to Bartram Village, they discussed the plan, Jackson called to order the pizza, and Jackson and Perry went to wait in vacant Apartment 1-A whilе Appellant went upstairs. Perry’s remaining ac
Appellant was found guilty of the aforementioned crimes on September 13, 2010, and on November 16, 2010, was sentenced as indicated above. Counsel was appointed to represent Appellant on appeal, but notice of the appointment was not sent to counsel. Appellant’s direct appeal rights were subsеquently reinstated, and Appellant filed a timely notice of appeal on April 29, 2011.
On June 6, 2011, the District Attorney’s Office forwarded to Appellant’s counsel a communication from the FBI. The document contains Agent Joseph Majarowitz’s summary of a May 9, 2011 interview with Curtis Brown, who had been incarcerated with Perry. Brown stated that Perry spoke of testifying at trial in a state court case against Appellant. Perry indicated that he testified that Appellant was involved in the robbery because “someone had to ‘go down’ for it,” but that Appellant was not actually involved in the crime. FBI Form FD-302, 5/18/2011.
Based upon this document, Appellant filed with this Court a petition to remand the case for a new trial or to pursue an after-discovered evidence petition with the trial court. By order of February 8, 2012, Appellant’s petition was denied without prejudice to raise the after-discovered evidence issue in his brief. Appellant has done so, presenting the following question for our consideration: “WHETHER APPELLANT IS ENTITLED TO AN EVIDENTIARY HEARING BASED ON AFTER DISCOVERED/NEWLY DISCOVERED EVIDENCE OF HIS INNOCENCE.” Appellant’s Brief at 10.
“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). “[A]fter-diseovered 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....” Pa.R.Crim.P. 720, Comment. Having determined that Appellant has followed the proper procedure, we turn to the merits of his request for relief.
To obtain relief based on after-discovered evidence, appellant must demonstrate that the evidence: (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted.
Commonwealth v. Montalvo,
The Commonwealth does not contend that Appellant failed to exercise reasonable diligence in discovering Brown’s evidence prior to the conclusion of trial. With Brown informing the FBI of Perry’s statements about Appellant’s innocence months after Appellant was sentenced, we are satisfied that Appellant has met the first prong of the after-discovered evidence test. Further, as no evidence was offered at trial to demonstrate that Appellant did not participate in the robbery, the second prong is satisfied.
We find instructive this Court’s decisions in Commonwealth v. Rivera,
In Rivera, after the trial, the Commonwealth’s lаboratory technician, who testified as to the weight and type of drugs that the appellant was accused of possessing, was “exposed as a corrupt and criminal individual who had abused her position of trust with the Philadelphia Police Department and had been charged with stealing drugs from the lab.” Id. at 357. Noting that it was “likely that a new trial is warranted in this case,” id. at 359, we nonetheless followed the proper procedure and remаnded the case for an evidentiary hearing to allow Rivera to make his case to the trial court that the after-discovered evidence met the four-prong test discussed above.
Similarly, in Castro, the Philadelphia Daily News published an article, after Castro’s trial, alleging that the police officer who had testified against Castro had engaged in corruption and falsification of evidence when conducting a drug raid unrelated to the charges against Castro. Castro,
The issue presently before us speaks to fundamental fairness. Had the news article been published four days before, rather than four days after Castro’s trial, he would have almost certainly been granted a continuance to test the allegations. We do not yet know whether Castro will be able to present a sufficient quantum of evidence to warrant vacating his conviction, but the potential for uncovering exculpatory evidence makes it more than probable that a trier of fact would come to a different conclusion. To deny Castro the opportunity to assert a proper defense at this time would exalt form over substance, which this Court declines to do.
Id. at 1249.
In the instant case, Appellant’s after-discovered evidence does more than call a key witness’s testimony into question based upon information that that witness was accused of bad acts related to some othеr criminal cases. Appellant has evidence from the FBI that Perry, the key witness at trial given Thompson’s inconsistent identification of Appellant, admitted that he perjured himself and that Appellant had nothing to do with the crime. We do not know at this point the extent of the statements against his interest that Perry made to Brown, or how much the evidence will point towards impeachment of Perry versus exculpation of Appellant. Because this evidence is even more pointed toward Appellant’s innocence than the evidence at issue in Rivera and Castro, we find it
Judgment of sentence vacated. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
Notes
. 18 Pa.C.S. §§ 2702(a), 3701(a)(1), 903(a)(1), and 907(a), respectively. In addition, Appellant was found guilty of a number of other crimes for which no further penalty was imposed. .
. Perry’s account did differ in some respects, such as regarding whether the robbery took place inside Apartment 1-A or outside the door thereto, and whether Jackson threatened to kill Thompson.
Concurrence Opinion
CONCURRING OPINION BY
I join in full Judge Strassburger’s thoughtful opinion disposing of this case. Given the limited body of Pennsylvania case law addressing after-discovered evidence that emerges during the рendency of a direct appeal of a judgment of sentence, I agree that Commonwealth v. Rivera,
There is no question that Pennsylvania courts long have applied the four-part test cited by Judge Strassburger to assess the necessity of a new trial in light of evidence discovеred after a conviction:
To obtain relief based on after-discovered evidence, [the] appellant must demonstrate that the evidence: (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted.
Maj. Mem. at 5 (quoting Commonwealth v. Montalvo,
Nonetheless, I share the apprehensions expressed by the Honorable Richard B. Klein in Commonwealth v. Choice,
[T]he majority relies on that statement repeated so often it has become an adage that, “the evidence will not be used solely for the purposes of impeachment.”
This is proof of the reality of the legal maxim, “communis error facit jus,” or “common error, repeated many times, makes law.”
I believe that what we have called a four-prong test is really only a three[-] prong [ ]test. Prong # 3, the “only for impeachment” prong, is just an extension of Prong # 4, that the new evidence would not affect the outcome. Normally, evidence that just would tend to impeach what a witness said would not change the outcome at a new trial.
A bald statement that evidence that оnly impeaches would never justify a new trial defies common sense and justice.
*668 Assume, for example, that a defendant is convicted of a robbery when the victim cannot make an identification, and the sole identification is made by a citizen who comes forth later to report that he witnessed the robbery and saw the defendant, whom he recognized. The witness identifies the defendant at trial. Suppose later it is discovered that this witness was an enemy of the defendant and in fact was a prisoner in an out-of-state jail at the time the robbery took place. Under the language of the rule as has been enunciated, this testimony about the witnesses’ jailing, proving that it was impossible for him to see what he said he saw, would not be enough to allow a new trial.... Since testimony about the incarceration would “be used solely for the purposes of impeachment,” this information would not be considered newly discovered evidence that justifies a new trial.
If one examines the cases that quote the so-called four-prong test, one can see that there is no case where the only grounds disqualifying the evidence from being considered after-discovered to warrant relief is the fact that it only impeaches. Actually, Prong # 3 is almost always cited in addition to Prong # 4, which denies a new trial where the evidence is not of such a nature and character that a different outcome is likely. However, a common sense approach is that in some cases, impeachment evidence is likely to change the result.
Id. at 1009-10 (Pa.Super.2008) (Klein, J., dissenting) (footnote omitted; emphasis in original).
Bench and bar alike would benefit from a recognition that the critical inquiry concerns the degree of probative value of the profferеd evidence and the likelihood that a different outcome would have resulted had the evidence been available to a defendant at trial. This assessment is one that trial courts are well-equipped to make without undue emphasis on sometimes protean terms of art like “impeachment.”
My review of this case and the underlying body of Pennsylvania case law also has revealed another source of concern: Our unclear, unstated standard of review for considering the necessity of remanding a case involving after-discovered evidence for trial court consideration.
Fortunately, our cases tacitly imply a fairly stable standard of review: Our task is to review only the quantum and charac
Our law requiring application of the four-part test to newly discovered evidence has been clear for many yeаrs.
Ultimately, it falls to the trial court to assess, under the circumstances of a given case, the necessity of a new trial. That assessment must be informed by the presence of prejudice, ie., the likelihood of a different result. When after-discovered evidence emerges during the pendency of a direct appeal, we should seek to determine only whether the appellant has made out a prima facie case to the effect that a trial court reasonably may conclude that a new trial is warranted. While the standard in the trial court is whether the defendant has shown the likelihood of a different outcome at trial by a preponderance of the evidence, see Castro, supra, we cannot set the bar so high without encroaching upon the trial court’s prerogatives.
I believe that bench and bar alike would benefit from a simplification of the four-part inquiry. It is substantively sound but confusingly stated. As well, this Court would benefit a great deal by distinguishing and defining its standard of review to separate its task clearly from the task of the trial court.
. Our standard of review concerning whether a trial court erred in determining whether to award a new trial is well-settled. See Padillas,
. See, e.g., Commonwealth v. Schuck,
Dissenting Opinion
DISSENTING OPINION BY
I respectfully dissent.
I believe the Majority, in vacating the judgment of sentence on the basis of this Court’s decisions in Commonwealth v. Rivera,
Specifically, our Supreme Court reiterated that:
After-discovered evidence is the basis for a new trial when it: 1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of trial by the exercise of reasonable diligence; 2) is not merely corroborative or cumulative; 3) will not be used solely for impeaching the credibility of a witness; and 4) is of such nature and character that a new verdict will likеly result if a new trial is granted.*670 Commonwealth v. Boyle,533 Pa. 360 , 625 A.3d [A.2d] 616, 622 (1993); Commonwealth v. Smith,518 Pa. 15 ,540 A.2d 246 (1988). Further, the proposed new evidence must be “producible and admissible.” Smith [518 Pa. at 50 ], 540 A.2d [at] 263; Commonwealth v. Scott,503 Pa. 624 ,470 A.2d 91 , 93 (1983).
Chamberlain,
Here, Appellant has failed to demonstrate any other purpose served by Brown’s statement beyond the obvious impeachment of co-conspirator Perry’s earlier testimony, which had been extensively challenged at trial. Rather than direct where in his brief Appellant offers another use for Brown’s statement, the Majority reliеs on the exculpatory nature of the statement and the fact the statement reflects that Perry, who was not the sole identification witness, perjured himself at trial. The long-standing third element of the after-discovered evidence test should not be ignored.
As our Supreme Court has noted previously: “Recanting testimony is exceedingly unreliable!;] ... There is no less reliable form of proof, especially when it involves an admission of perjury.” Commonwealth v. Anderson,
Setting aside the question as to whether Brown’s hearsay within hearsay statement would be producible
. Appellant concedes that he has not produced affidavits from Brown, coconspirator Perry, or Agent Majarowitz, establishing their "availability and willingness to cooperate with the defense.” Appellant’s Brief at 27 (quoting Commonwealth v," Khalil,