Com. v. Sandusky, G. ( 2021 )

J-A25003-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD A. SANDUSKY :
:
Appellant : No. 446 MDA 2020
Appeal from the Judgment of Sentence Entered November 22, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0002421-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD A. SANDUSKY :
:
Appellant : No. 447 MDA 2020
Appeal from the Judgment of Sentence Entered November 22, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0002422-2011
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED MAY 13, 2021
Gerald A. Sandusky appeals from his November 22, 2019 judgment of
sentence imposed after this Court vacated his original judgment of sentence
due to the imposition of an illegal mandatory minimum term and remanded
for resentencing. See Commonwealth v. Sandusky, 203 A.3d 1033, 1103-
04 (Pa.Super. 2019) (“Sandusky II”). We affirm in part, vacate in part, and
remand with instructions.
J-A25003-20
This Court previously authored a succinct encapsulation of the factual
overview of this case, which in relevant part is as follows:
On November 4, 2011, after the Thirty-Third Statewide
Investigating Grand Jury issued a recommendation and
presentment, the Commonwealth charged Appellant with
committing numerous sexual offenses against eight young males
referred to as Victims 1 through 8 in case number 2422-
2011. . . .
On December 7, 2011, after the Thirty-Third Statewide
Investigating Grand Jury issued another presentment, the
Commonwealth charged Appellant with crimes committed against
two additional victims, referred to as Victims 9 and 10 in case
number 2421-2011. . . . The matter was held over to the Centre
County Court of Common Pleas, and the Honorable John M.
Cleland was specially appointed to preside.
[Thereafter,] Appellant proceeded to a jury trial. On June 22,
2012, the jury found Appellant guilty of forty-five counts relating
to the ten victims between 1995 and 2008.[1]
Id. at 1041-42. Appellant was sentenced to an aggregate term of thirty to
sixty years of imprisonment, which included the imposition of several
mandatory minimum terms pursuant to 42 Pa.C.S. § 9718(a). He filed a direct
____________________________________________
1 At case number 2421-2011, Appellant was found guilty of four counts of
involuntary deviate sexual intercourse (“IDSI”), two counts of indecent
assault, two counts of unlawful contact with a minor, two counts of corruption
of minors, and two counts of endangering the welfare of children. At case
number 2422-2011, Appellant was found guilty of four counts of IDSI, five
counts of indecent assault, seven counts of unlawful contact with minors, eight
counts of corruption of minors, eight counts of endangering the welfare of
children, and one count of criminal attempt to commit indecent assault.
Appellant’s crimes “spanned a thirteen-year period.” Commonwealth v.
Sandusky, 77 A.3d 663, 665 (Pa.Super. 2013) (“Sandusky I”).
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appeal to this Court, which affirmed his judgment of sentence. Id. at 674.
Appellant did not seek allowance of appeal in the Pennsylvania Supreme Court.
Thereafter, Appellant filed a timely petition for relief pursuant to the
Post-Conviction Relief Act (“PCRA”), which asserted a panoply of grounds for
relief. Following six separate evidentiary hearings, the PCRA court denied
Appellant’s petition. On appeal, this Court affirmed that portion of the PCRA
court’s holding that denied Appellant’s numerous requests for a new trial, but
vacated his judgment of sentence as illegal pursuant to Alleyne v. United
States, 570 U.S. 99 (2013) and Commonwealth v. Wolfe, 140 A.3d 651(Pa. 2016).2 See Sandusky II, supra at 1103-04. Specifically, this Court
found that the imposition of mandatory minimums in Appellant’s case
pursuant to § 9718 was unconstitutional and, therefore, must be vacated. Id.
Appellant filed for allowance of appeal with our Supreme Court, which
denied it. See Commonwealth v. Sandusky, 216 A.3d 1029 (Pa. 2019)
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2 As written at the time of Appellant’s original sentencing, 42 Pa.C.S. § 9718
required the sentencing court to conduct independent fact-finding to
determine the applicability of the mandatory minimum sentence terms. See
42 Pa.C.S. § 9718(c) (“The applicability of this section shall be determined at
sentence. The court . . . shall determine, by a preponderance of the evidence,
if this section is applicable.”). However, in Alleyne v. United States, 570
U.S. 99, 99 (2013) the U.S. Supreme Court has since concluded that judicial
fact-finding with respect to mandatory minimum sentences violates the Sixth
Amendment to the U.S. Constitution. See id. (“Because mandatory minimum
sentences increase the penalty for a crime, any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury.”). In
Commonwealth v. Wolfe, 140 A.3d 651, 661 (Pa. 2016), our Supreme Court
concluded that Alleyne had rendered the mandatory minimum sentence
framework at § 9718 constitutionally infirm.
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(per curiam order). Thereafter, Appellant did not petition for a writ of
certiorari in the U.S. Supreme Court.
On November 22, 2019, Appellant was resentenced to an aggregate
term of thirty to sixty years of incarceration at both above-captioned cases.
See N.T. Sentencing, 11/22/19, at 38-39. With respect to financial penalties,
the sentencing court’s order directed that Appellant pay restitution to the
Victim’s Compensation Assistance Program (“VCAP”) in the amount of
$1,706.81. Id. at 46. The sentencing court made no reference to any other
restitutionary sums owed by Appellant. See also Sentencing Order,
12/19/19, at 4. This restitution was specifically imposed with respect to
Appellant’s conviction at docket number 2422-2011. In addition to the sum
referenced above, Appellant’s docket also reflects the imposition of additional
restitution in the amount of $95,047.88. There is no mention of this amount
in the transcripts of the sentencing hearing or the sentencing order.
On December 2, 2019, Appellant filed a timely post-sentence motion
requesting reconsideration of the sentence imposed upon various grounds.
See Post-Sentence Motion, 12/2/19, at ¶ 7(i)-(vi). However, Appellant did
not therein raise any challenge to the financial conditions of his sentence. On
January 28, 2020, the sentencing court held a hearing at which Appellant
argued that the sentence imposed was unduly harsh in terms of his overall
rehabilitative needs. At the conclusion of the hearing, the sentencing court
denied Appellant’s motion. See N.T. Post-Sentence Motion Hearing, 1/28/20,
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at 24; see also Order, 1/31/20, at 1. Appellant filed timely notices of appeal
at the above-captioned cases in February 2020.3
On May 9, 2020, Appellant filed in this Court a motion seeking a new
trial upon the basis of after-discovered evidence pursuant to Pa.R.Crim.P.
720(C). See Motion for New Trial on the Ground of After-Discovered Evidence,
5/9/20, at ¶¶ 1-68. Alternatively, he requested remand for further evidentiary
hearings. Id. at ¶¶ 69-70. Two days later, Appellant filed a timely Pa.R.A.P.
1925(b) concise statements at both cases. In this filing, he asserted for the
first time that the restitution provisions of his criminal sentence should be
vacated. See Rule 1925(b) Concise Statement, 5/11/19, at ¶ 1. Appellant
also noted the Rule 720(C) motion he had filed in this Court and incorporated
those issues in his concise statement by reference. Id. at ¶ 2(A)-(E).
On June 1, 2020, the sentencing court filed a Rule 1925(a) opinion
asserting that Appellant’s claim concerning restitution implicated the
discretionary aspects of his sentence and, ultimately, found waiver for failure
to raise the claim prior to appeal. See Rule 1925(a) Opinion, 6/1/20, at 4.
The sentencing court did not engage with the substance of Appellant’s Rule
720(C) arguments, but “respectfully” raised the issue of whether Appellant
had acted promptly in filing the motion. Id. at 5.
In his brief to this Court, Appellant has raised two issues:
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3 On June 11, 2020, this Court consolidated these two cases sua sponte.
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1. Did the [sentencing court] err in imposing a sentence requiring
the payment of restitution in the amounts of $1,706.81,
$95,047.88[,] and $1,420.01, since no testimony, documents
or evidence of any kind were provided to the [c]ourt to support
any claim for restitution, and the only amount of restitution
ordered in the sentencing proceedings was in the amount of
$1,706.81?
2. Should [Appellant’s Motion for New Trial on the Ground of
After-Discovered Evidence], filed in this Court pursuant to
Pa.R.Crim.P. 720(C), be remanded to the [sentencing court]
for evidentiary hearings, and decisions, on said motions?
Appellant’s brief at 5.
Appellant’s first issue concerns the restitution portion of his criminal
sentence at docket number 2422-2011. As noted above, although the
sentencing court only explicitly referenced restitution in the amount of
$1,706.81, Appellant’s sentence also includes an additional restitution
component in the amount of $95,047.88.4 To be clear, Appellant is
challenging the validity of both of these amounts and asserts that there is
insufficient support for the imposition of any restitution in the certified record.
See Appellant’s brief at 26 (“The trial court erred in imposing . . . any order
of restitution under the circumstances where there was literally no evidence
____________________________________________
4 To the extent that Appellant makes references to restitution in the amount
of $1,420.01, our review of the certified record reveals no such financial
penalty. Rather, we discern that this figure was derived from the $1,706.81
in restitution referenced by the sentencing court during Appellant’s
resentencing, minus sums that Appellant has already paid. Accordingly, we
will not address this figure further.
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offered at resentencing . . . to support any factual finding that restitution was
warranted, or what the appropriate amount of restitution should be.”).
To its credit, the Commonwealth concedes that there is no support in
the record for the $95,047.88 portion of Appellant’s restitution and asserts
that “limited remand” for clarification is needed. See Commonwealth’s brief
at 11-16. With respect to the $1,706.81 in restitution, the Commonwealth
claims that “[t]he supporting documentation pertaining to this claim was made
available to [Appellant] in the 2012 pre-sentence investigation report” and
asserts that this amount is “directly related to services provided to one of the
victims who testified at trial.” Id. at 13 n.9.
Before addressing its merits, we must properly construe the nature of
Appellant’s claim for relief. Appellant did not raise this issue before the
sentencing court, or in his post-sentence motions. In its Rule 1925(a) opinion,
the sentencing court concluded that Appellant’s challenge to the validity of
restitution implicated the discretionary aspects of his sentence and found
waiver. See Rule 1925(a) Opinion, 6/1/20, at 4. Conversely, both Appellant
and the Commonwealth assert that this issue implicates the legality of
Appellant’s sentence and, therefore, is not subject to waiver.
Whether a claim implicates the legality of a sentence presents a pure
question of law, in which case our scope of review is plenary, and our standard
of review is de novo. See Commonwealth v. Weir, 239 A.3d 25, 30 (Pa.
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2020). Our Supreme Court recently addressed this very issue in Weir, and
we find its analysis instructive in this case:
Where a claim concerns the sentencing court’s exercise of
discretion in fashioning a sentence, the defendant must preserve
and present the claim at trial by way of a contemporaneous
objection and/or a post-trial motion and on appeal through the
process provided by 42 Pa.C.S. § 9781(b) and Pa.R.A.P. 2119(f).
Where a claim concerns the sentencing court’s authority to impose
a sentence, it is reviewable as of right on direct appeal, without
regard to preservation of the claim. Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). “[A] determination
that a claim implicates the legality of a sentence . . . operates to
revive a claim otherwise insufficiently preserved below,” and is
reviewable on permissive appeal. [Id.]
In the realm of challenges to orders of restitution, [In the
Interest of M.W., 725 A.2d 729 (Pa. 1999)] is this Court’s
seminal discussion of the distinction between challenges to the
legality of a restitution sentence and the discretionary aspects of
such a sentence, and the resulting impact on issue preservation
requirements.
Id. at 34. The decision in M.W. set forth a straightforward test for
determining the nature of a claim challenging an order of restitution: “Where
such a challenge is directed to the trial court’s authority to impose restitution,
it concerns the legality of the sentence; however, where the challenge is
premised upon a claim that the restitution order is excessive, it involves a
discretionary aspect of sentencing.” M.W., supra at 731 n.4.
Restitution is “[t]he return of property of the victim or payments in cash
or the equivalent thereof pursuant to an order of court.” 18 Pa.C.S. § 1106(h).
As a general matter, “an order of restitution must be based upon statutory
authority.” M.W., supra at 731. “[T]he authority of the sentencing court to
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impose restitution is codified in the Crimes Code in Section 1106.” Weir,
supra at 34; see also 42 Pa.C.S. § 9721(c). In pertinent part, § 1106
provides as follows:
(a) General rule.—Upon conviction for any crime wherein:
(1) property of a victim has been stolen, converted or
otherwise unlawfully obtained, or its value substantially
decreased as a direct result of the crime; or
(2) the victim, if an individual, suffered personal injury
directly resulting from the crime,
the offender shall be sentenced to make restitution in addition to
the punishment prescribed therefor.
....
(c) Mandatory restitution.—
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of the
defendant, so as to provide the victim with the fullest
compensation for the loss. . . .
....
(2) At the time of sentencing the court shall specify the
amount and method of restitution. In determining the
amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the
victim, the victim’s request for restitution as
presented to the district attorney in accordance with
paragraph (4) and such other matters as it deems
appropriate.
(ii) May order restitution in a lump sum, by monthly
installments or according to such other schedule as it
deems just.
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(iii) Shall not order incarceration of a defendant for
failure to pay restitution if the failure results from the
offender’s inability to pay.
(iv) Shall consider any other preexisting orders
imposed on the defendant, including, but not limited
to, orders imposed under this title or any other title.
....
(4)(i) It shall be the responsibility of the district attorneys
of the respective counties to make a recommendation to the
court at or prior to the time of sentencing as to the amount
of restitution to be ordered. This recommendation shall be
based upon information solicited by the district attorney and
received from the victim.
18 Pa.C.S. § 1106.
In Weir, our Supreme Court applied the test set forth in M.W. directly
to the above-discussed statutory framework governing restitution, as follows:
In the context of issue preservation principles, Section 1106
requires an integrated analysis of its relevant provisions. Section
1106(a) is mandatory in its directive and removes any discretion
from the sentencing court to impose restitution as punishment
upon conviction of a crime under two circumstances: where the
property of a victim has been stolen, converted or otherwise
unlawfully obtained or its value has been substantially decreased
as a direct consequence of the crime, 18 Pa.C.S. § 1106(a)(1), or
where the victim, if an individual, suffered personal injury
resulting from the crime, 18 Pa.C.S. § 1106(a)(2). Thus, the
failure of a trial court to impose restitution where the
circumstances described in Section 1106(a)(1) or (2) are
established results in an illegal sentence. Conversely, and as
relevant to a defendant’s challenge, if the statutory
circumstances are not established and the sentencing court
orders restitution, the challenge to the sentence implicates
its legality. In either of these sentencing scenarios, a challenge
to the sentence of restitution need not be preserved.
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Weir, supra at 37-38 (emphasis added). By contrast, challenges to the
amount of restitution ordered, or to the extent of injury or loss suffered by a
victim, implicate only the discretion of the sentencing court. Id. at 38.
Accordingly, we agree with the parties that Appellant’s first claim for
relief implicates the legality of his sentence. Appellant’s argument is not that
the sums of $1,706.81 and $95,047.88 are excessive and must be reduced,
but that the predicate requirements for the entry of any order of restitution
at § 1106(a) have not been met. See Appellant’s brief at 30-31;
Commonwealth’s brief at 15-16 (“ [Appellant’s] argument is that there is no
causal nexus between his sexual assaults and the restitution . . . . Since this
type of argument is a challenge to the legality of his sentence, the claim
cannot be waived.”). Thus, we will address the merits of Appellant’s claim.
Under Pennsylvania law, “[t]here must be a direct link between the
crime and the requested damages for restitution to be ordered Section
1106(a).” Commonwealth v. Holmes, 155 A.3d 69, 83 (Pa.Super. 2017)
(en banc) (plurality); see also Commonwealth v. Poplawski, 158 A.3d
671, 674 (Pa.Super. 2017) (“[R]estitution is proper only if there is a causal
connection between the crime and the loss.”).
There is sufficient support in the certified record to support the
sentencing court’s order for Appellant to pay restitution in the amount of
$1,706.81. As noted in a September 24, 2012 letter sent by the Centre
County Probation and Parole Department to the sentencing court, “[i]t is
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respectfully recommended the Court order [Appellant] to pay restitution to
[VCAP] in the amount of $1,706.81 as part of any sentencing orders of CP-
14-CR-2422-2011, Counts 32, 34, and 35 relating to Victim #7.” Letter,
9/24/12, at 1. Specifically, this restitution was related to counseling and
transportation expenses incurred by one of Appellant’s victims. Appellant was
ordered to pay this exact amount when he was originally sentenced on October
9, 2012. See Sentencing Order, 10/9/12, at 4. While the sentencing court
did not explicitly reference this justification during Appellant’s resentencing,
we note that “[t]here is no requirement the reasons for ordering restitution
be set forth at sentencing.” Commonwealth v. McLaughlin, 574 A.2d 610,
617 (Pa.Super. 1990); see also 18 Pa.C.S. § 1106(c)(2) (requiring the court
set forth only the “amount and method of restitution” at the time of
sentencing).
The provenance, however, of Appellant’s apparent obligation to pay
$95,047.88 in restitution is significantly less clear. It does appear from our
review of the certified record that Appellant is being required to pay this sum
in connection with his convictions at case number 2422-2011. See Docket
Case No. 2422-2011, 2/25/20, at 116 (indicating that Appellant owes
“Restitution” in the amount of “$95,047.88”). However, this sum is not
referenced in any transcript or document that we have reviewed in the
certified record. Indeed, the only document that speaks to Appellant’s
restitution obligations is the above-quoted correspondence from the Centre
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County Probation and Parole Department, and it is silent regarding any such
amount owed save for the $1,706.81 discussed above.
While acknowledging the depravity of Appellant’s convictions, there still
must be an evident causal connection between the restitution to be paid and
his underlying crimes. See Commonwealth v. Harner, 617 A.2d 702, 705
(Pa. 1992) (“[R]estitution can be permitted under 18 Pa.C.S. § 1106 only as
to losses for which the defendant has been held criminally accountable. This
is in keeping with the well established principle that criminal statutes must be
strictly construed.”). Ultimately, there is no evident causal connection in the
certified record between the $95,047.88 in apparent restitution and
Appellant’s convictions. This is plain error. Id. at 705 (holding that the
sentencing court erred in ordering restitution under § 1106(a) where there
was no nexus between financial loss and the defendant’s conviction);
Commonwealth v. Zrncic, 167 A.3d 149, 152-53 (Pa.Super. 2017) (same).
Therefore, we vacate that portion of Appellant’s criminal sentence at
case number 2422-2011 requiring him to pay $95,047.88 in restitution.
Furthermore, limited remand is appropriate due to conflicting representations
in the record as to the origins of the $95,047.88 in restitution.5 Upon remand,
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5 For example, in its opinion entered pursuant to Pa.R.A.P. 1925(a), the
sentencing court states without explanation that the $95,047.88 in restitution
that Appellant has been ordered to pay reflects the “costs” of prosecution.
See Rule 1925(a) Opinion, 6/1/20, at 4. We find no support for this conclusion
in the certified record or the sentencing transcripts.
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the sentencing court shall address any outstanding issues related to the
$95,047.88 in restitution discussed above and ensure that Appellant is
resentenced in conformity with § 1106(a).
We now turn to Appellant’s application for relief pursuant to Pa.R.Crim.P.
720(C), which concerns “after-discovered evidence” that Appellant claims
should result in the award of a new trial, or, in the alternative, remand for
further evidentiary hearings. See Motion for New Trial on the Ground of After-
Discovered Evidence, 5/9/20, at ¶¶ 1-73. The after-discovered evidence
relied upon by Appellant is: (1) a photocopy of a diary allegedly maintained
by Kathleen McChesney in her capacity as a member of the investigative team
led by Louis Freeh, Esquire (“the Freeh team”), which was appointed by the
Penn State Board of Trustees to conduct an independent inquiry into events
surrounding Appellant’s crimes; (2) “summaries” of alleged emails to and from
various members of the Freeh team; and (3) an affidavit from Appellant’s trial
counsel concerning his responses to this alleged information. Id. at ¶ 6.
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We also note that on November 6, 2019, Appellant filed an application to strike
a judgment that was apparently entered by the Centre County Probation and
Parole Department on a separate civil docket in the amount of $97,351.69
with respect to Appellant’s conviction at case number 2422-2011. See
Petition to Strike Judgment at Case No. 2012-3834, 11/6/19, at ¶¶ 1-5. In
this de hors petition, Appellant sought to strike the purported judgment upon
the basis that there was no certification pursuant to 42 Pa.C.S. § 9728(b)(1).
Id. at ¶¶ 6-9. Appellant has not raised any claims that explicitly implicate
this filing. Furthermore, any issues related to this civil case are not properly
before us. Nonetheless, the uncertain status of that case underscores the
need for remand on a limited basis.
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Aside from trial counsel’s affidavit, these referenced documents are not
attached to Appellant’s motion or otherwise available for primary review by
this Court, although Appellant has attached what he purports to be summaries
of these documents as a sealed exhibit to his motion. Id. at Exhibit A. In
general, Appellant asserts that this evidence bespeaks “substantial
communications between the Office of Attorney General and the Freeh group,”
as well as other individuals related to Penn State and the National Collegiate
Athletic Association. Overall, Appellant claims his trial strategy would have
been different if counsel had been aware of these communications. Id. at ¶¶
7-10, 13-25, 45, 54-62. He also alleges violations of Brady v. Maryland,
373 U.S. 83, 87 (1963). Id. at ¶¶ 63-68.
Pennsylvania Rule of Criminal Procedure 720 governs Appellant’s
requests for relief. In pertinent part, it provides that “[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)
(emphasis added). The commentary to this rule provides further guidance
with respect to such claims:
[P]aragraph (C) requires that any claim of after-discovered
evidence must be raised promptly after its discovery. Accordingly,
after-discovered evidence discovered during the post-sentence
stage must be raised promptly with the trial judge at the post-
sentence stage; 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; and after-discovered evidence discovered after
completion of the direct appeal process should be raised in the
context of the PCRA.
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Pa.R.Crim.P. 720 at cmt. Thus, a defendant’s duty to promptly file a Rule
720(C) motion is directly related to the time of discovery.
Thus, before addressing the merits of Appellant’s claim, we must assess
whether he has complied with the procedural requirements of Rule 720(C) by
filing a “prompt” post-sentence motion. See Commonwealth v. Perrin, 108
A.3d 50, 51 (Pa.Super. 2015). There is no bright-line rule with respect to
promptness under Rule 720(C), but our case law indicates that defendants
must act swiftly. See Commonwealth v. Griffin, 137 A.3d 605, 607
(Pa.Super. 2016) (considering the merits of Rule 720(C) motion where it was
filed within approximately four days of disclosure of new evidence);
Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa.Super. 2014) (holding
that a defendant’s Rule 720(C) motion was “promptly” filed when it was
submitted within twenty-four hours of discovering new evidence);
Commonwealth v. Rivera, 939 A.2d 355, 356-58 (Pa.Super. 2007) (holding
that defendant complied with promptness requirement of Rule 720(C) by filing
within three weeks of publication of after-discovered evidence and
“immediately” after its discovery).
In relevant part, Appellant asserts as follows with the respect to the
timeline of discovery:
On November 4, 2019, [counsel for Appellant] received a copy of
a document purported to be the diary maintained by Ms.
McChesney regarding events occurring in the Freeh investigation.
Thereafter, in February, 2020, counsel obtained copies of
summaries of emails among, and including, Freeh group
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members. Finally, current counsel reviewed these and other
documents with [Appellant’s] trial counsel in March, 2020, and
trial counsel provided responses set forth in an Affidavit[.]
See Motion for New Trial on the Ground of After-Discovered Evidence, 5/9/20,
at ¶ 6. Thus, Appellant waited six months from the disclosure of the alleged
McChesney diary, four months from the disclosure of the purported email
summaries, and three months from the completion of trial counsel’s affidavit
to file a motion for a new trial upon the basis of after-discovered evidence.
We are unconvinced that Appellant acted “promptly” within the meaning
of Rule 720(C). Based on Appellant’s own timeline, the two critical pieces of
after-discovered evidence,6 e.g., the McChesney diary and the Freeh team
emails, were indisputably discovered while Appellant’s case was still in the
post-sentence phase.7 As such, Rule 720(C) indicates that he had a duty to
promptly raise these evidentiary issues with the sentencing court. Instead,
Appellant dithered for one-half of a year before raising these issues in a
petition to this Court. This procedure does not comport with Rule 720(C).
Therefore, we deny Appellant’s motion for failure to comply with the
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6 The affidavit of trial counsel is technically “new” in that it contains
statements that did not exist before the time of this case. However, it offers
little in terms of substantive evidence aside from: (1) confirmation that these
documents were previously unknown to trial counsel; and (2) corroboration of
certain factual points, such as scheduling and pre-trial negotiations. See
Amended Exhibit A, 6/17/20, at ¶¶ 1-41.
7 Appellant has not provided a discrete date upon which trial counsel’s
affidavit was executed prior to the filing of the Rule 720(C) motion, stating
only that trial counsel reviewed these documents sometime in March 2020.
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procedural requirements of Rule 720(C). Due to the nature of our holding, we
do not address the merits of his allegations.
Judgment of sentence affirmed in part and vacated in part. Case
remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2021
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