Commonwealth v. Perrin , 2015 Pa. Super. 4 ( 2015 )

J-S53011-12
2015 Pa. Super. 4
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONTEZ PERRIN, :
:
Appellant : No. 1166 EDA 2011
Appeal from the Judgment of Sentence of November 16, 2010,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0003284-2008.
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED JANUARY 12, 2015
This matter comes before this Court on remand from the Pennsylvania
Supreme Court “for reconsideration in light of Commonwealth v. Castro,”
93 A.3d 818 (Pa. 2014). After so doing, we grant the request of Dontez
Perrin (Appellant) to remand for a hearing based upon after-discovered
evidence, and remand the case for further proceedings consistent with this
opinion.
The procedural history of this case is as follows. Appellant appealed
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
*Retired Senior Judge assigned to the Superior Court.
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crime.1 Appellant asked this Court to remand the case for a hearing based
upon after-discovered evidence. After reviewing the relevant law, including
this Court’s decisions in Commonwealth v. Rivera, 939 A.2d 355 (Pa.
Super. 2007), and Commonwealth v. Castro, 55 A.3d 1242 (Pa. Super.
2012) (en banc), we granted Appellant’s request and remanded the case for
further proceedings. Commonwealth v. Perrin, 59 A.3d 663 (Pa. Super.
2013). The Commonwealth filed a petition for allowance of appeal with our
Supreme Court. On June 16, 2014, that Court reversed this Court’s Castro
decision. By order of October 2, 2014, our Supreme Court granted the
Commonwealth’s petition for allowance of appeal in the instant case,
vacated this Court’s order, and remanded the case to us for reconsideration
in light of its Castro opinion.
We discussed the facts of the instant case in detail in our prior opinion,
see Perrin, 59 A.3d at 664-65, and need not reiterate them herein. Suffice
it to say that Appellant’s convictions were based primarily upon the
testimony of Lynwood Perry, who informed the jury that Appellant had
joined him and Amir Jackson in committing the robbery of the victim,
Rodney Thompson.2 Perry acknowledged that he was testifying for the
1
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.
2
Thompson, who knew the other two men who attacked him but had not
seen the third man before the night of the robbery, also testified at
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Commonwealth pursuant to a deal with the federal government, by which he
could receive a significantly lighter sentence for federal charges stemming
from his participation in the instant and other robberies in exchange for his
cooperation with the prosecution.
On June 6, 2011, well after Appellant’s trial and sentencing but while
his direct appeal was pending, 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.
This document formed the basis of Appellant’s petition to remand the
case for a new trial or to pursue an after-discovered evidence petition with
the trial court. In granting Appellant’s petition and remanding the case for a
hearing, we offered the following discussion.
“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-discovered
evidence discovered during the direct appeal process must be
raised promptly during the direct appeal process, and should
Appellant’s trial. However, Thompson’s testimony was less definite than
Perry’s, as Thompson had given conflicting descriptions of the third attacker
and failed to identify Appellant consistently.
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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, 604 Pa. 386, 986 A.2d 84, 109
(2009) (quoting Commonwealth v. Pagan, 597 Pa. 69, 950
A.2d 270, 292 (2008)).
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.
Addressing the remaining two prongs of the test, the
Commonwealth argues that Brown’s statement would solely be
used for impeachment purposes, and that “it is unlikely that a
vague, secondhand statement from an inmate whose motives
and connections to [Appellant] and Perry are unknown would tip
the weight of the evidence in his favor and cause the finder of
fact to acquit him.” Commonwealth's Brief at 11. We agree that
it is not clear from the scant evidence before us that Appellant is
entitled to a new trial. However, we need not decide these
issues in the first instance.
We find instructive this Court’s decisions in [Rivera] and
[Castro].
In Rivera, after the trial, the Commonwealth’s laboratory
technician, who testified as to the weight and type of drugs that
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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
remanded 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 [(Officer Cujdik)] had engaged in
corruption and falsification of evidence when conducting a drug
raid unrelated to the charges against Castro. Castro, 55 A.3d at
1244–45. Based upon this article as after-discovered evidence,
Castro moved for a new trial. The trial court denied the motion,
determining that the new evidence had no purpose other than to
impeach the credibility of the officer. Id. Relying on Rivera,
this Court, sitting en banc, vacated Castro’s judgment of
sentence and remanded the case for a hearing on the after-
discovered evidence claim, stating as follows.
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 other criminal cases. Appellant has
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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 appropriate
to remand the case to allow Appellant to flesh-out his claim for a
new trial before the trial court.
Perrin, 59 A.3d at 665-67 (emphasis added).3
We now consider whether a different result is warranted given our
Supreme Court’s reversal of this Court’s Castro decision. The Supreme
Court granted review in Castro to decide the following issue: “Is it possible
to meet the test for after-discovered evidence where the defendant proffers
no evidence, but instead relies on a newspaper article?” Castro, 93 A.3d at
824. After agreeing with the parties that the newspaper article at issue was
not itself evidence, but rather a collection of “allegations that suggest such
evidence may exist,” id. at 825, the Court went on to offer the following
guidance about what is required of a criminal defendant making an after-
discovered evidence claim.
We decline to impose a strict requirement that the
proponent of a Rule 720 motion attach affidavits or other offers
of proof; the rule does not contain express language requiring
this, in contrast to the rules pertaining to PCRA petitions.
However, we hold a motion must, at the very least, describe the
3
Judge Shogan filed a dissenting opinion, opining that Appellant had failed
to demonstrate that Perry’s statement would be used for a purpose other
than impeachment.
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evidence that will be presented at the hearing. Simply relying
on conclusory accusations made by another, without more, is
insufficient to warrant a hearing. The article here mentioned
individuals who may have been relevant witnesses in the end, as
well as a video tape and an ongoing investigation regarding
Officer Cujdik. The motion says nothing about which, if any, of
this potential evidence appellee would rely on to support his
request for a new trial. Absent identification of the actual
testimony, physical evidence, documentation, or other type of
evidence to support the allegations of Officer Cujdik’s
wrongdoing, we cannot conclude appellee had evidence to offer;
to conclude otherwise would be speculation.
Id. at 827 (footnote omitted).
Applying these pronouncements of our Supreme Court to the facts of
the instant case, we see no reason to alter our original analysis or
conclusion. The proof of after-discovered evidence at issue offered in the
instant case is a document generated by an FBI agent detailing a
conversation in which Perry admitted that Appellant did not participate in the
crimes for which he was convicted, not a newspaper article alleging a
witness’s acts of impropriety in an unrelated matter.
Further, Appellant described the evidence he will offer at the hearing
with sufficient specificity to satisfy our Supreme Court’s requirements. In
Castro, Castro did not identify in his petition the witnesses he wished to call
to support his claim. See Castro, 93 A.3d at 827 n.14 (“At argument,
[Castro’s] counsel stated that he had spoken with the reporters who
authored the article and the FBI agents involved in the investigation, and he
would offer them as witnesses; however, [Castro’s] motion did not mention
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these witnesses”). In stark contrast, Appellant’s petition for remand clearly
states that, if granted an evidentiary hearing, he will call Lynwood Perry and
Curtis Brown, as well as FBI Special Agent Joseph Majarowitz, as witnesses
to offer exculpatory evidence and establish that a different result would
obtain if Appellant is granted a new trial. Petition for Remand, 1/19/2012,
at 2-3.
Accordingly, we again grant Appellant’s petition for remand, and
remand this case for an evidentiary hearing and a trial court determination
of whether a new trial is warranted.
Petition for Remand granted. Case remanded for further proceedings
consistent with this opinion. Jurisdiction relinquished.
Judge Wecht joins the opinion.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2015
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