Com. v. Miller, S. ( 2019 )

J-A19035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN R. MILLER :
:
Appellant : No. 1652 EDA 2018
Appeal from the Order Dated May 30, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011715-2014
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 20, 2019
Appellant, Steven R. Miller, appeals from the order entered by the Court
of Common Pleas of Philadelphia County denying his request for a new trial
based on after-discovered evidence. After careful review, we affirm.
This Court has previously set forth the facts and procedural history of
the case, as follows:
On October 6, 2013, Appellant, an inmate at Curran-Fromhold
Correctional Facility in Philadelphia, was using a phone in the
prison’s telephone bank. Khayree Murray, a fellow inmate,
approached Appellant and asked to use one of the phones.
Correctional Officers Denise Irving and Eddie Rosa and
Correctional Sergeant Joyce Cooper observed Appellant attack
Murray. Appellant stabbed Murray several times with “a sharp
long screw rigged with sharp ridges and a rubber band wrapped
in a ripped T-shirt” in the head, back, and ear. Officer Rosa
immediately intervened, separated the two men with the help of
Officer Irving, and used pepper spray to subdue Appellant.
Officers recovered the makeshift weapon from the ground after
Appellant dropped it. Officer Rosa testified that Murray was in
shock and that he did not observe Murray strike Appellant.
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* Former Justice specially assigned to the Superior Court.
J-A19035-19
Murray attempted to downplay his injuries, and told officers that
he fell down some stairs. Murray sustained life-threatening
injuries, which included three stab wounds to the back, two
puncture wounds to the base of the neck, wounds to his back,
back of the head, and left hand, and lacerations to his ear and
cheek. Murray’s injuries required eight sutures. Sergeant Cooper
decided to transport Murray to the hospital for treatment.
Appellant had no injuries, but he was treated for pepper spray in
his eyes and placed in solitary confinement.
While walking with Officer Rosa through the prison shortly after
the stabbing, Appellant stated, “If you didn’t pepper spray, you
would have been the next victim.”[fn] Trial Court Opinion at 5. In
recorded prison phone calls, Appellant subsequently made several
inculpatory statements, boasted of his violent reputation in the
prison as a result of the attack, and repeated a rumor that there
was a bounty on Murray’s head because he was such a snitch.
Fn. Officer Rosa omitted this statement from the
official written report of the incident.
Appellant proceeded to a jury trial. Murray refused to testify at
trial and the trial court held him in contempt. Appellant testified
and claimed that he acted in self-defense. Although Appellant
claimed that Murray attacked him first with the weapon, Appellant
admitted that he never feared that Murray would kill him.
On June 25, 2015, the jury convicted Appellant of Aggravated
Assault, Simple Assault, and PIC. On that same day, the trial
court imposed an aggregate term of 8 to 20 years’ incarceration.
Appellant filed a Post-Sentence Motion, which the trial court
denied on October 2, 2015.
Appellant filed a timely Notice of Appeal. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
Commonwealth v. Miller, 172 A.3d 632, 638 (Pa.Super. 2017).
On direct appeal, Appellant, through present counsel, raised eight
questions for this Court’s consideration. We deemed the first seven issues
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meritless and affirmed judgment of sentence on that basis, but we determined
remand was necessary to allow the trial court to consider the final issue, in
which Appellant raised an after-discovered evidence claim. Id., at 650-51.
Specifically, Appellant asserted that two inmates had written letters to his
attorney after his trial detailing their eyewitness observations of the prison
attack in question and identifying Appellant as the true non-aggressor and
victim who acted only in self-defense. In deciding that remand was
appropriate, we explained:
“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). The Comment to Rule 720
explains that “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[.]” Pa.R.Crim.P. 720, Comment.
“To warrant relief, after-discovered evidence must meet a four-
prong test: (1) the evidence could not have been obtained before
the conclusion of the trial by reasonable diligence; (2) the
evidence is not merely corroborative or cumulative; (3) the
evidence will not be used solely for purposes of impeachment; and
(4) the evidence is of such a nature and character that a different
outcome is likely.” Commonwealth v. Rivera, 939 A.2d 355,
359 (Pa.Super. 2007) (citation omitted).
Appellant avers that while his claim was pending on appeal in this
Court, Larry Williams sent Appellant's attorney a letter on August
12, 2016, over a year after Appellant was sentenced, claiming that
the victim “told him a few hours before the incident that he was
going to stab [Appellant] because he didn't like what he did at the
phones. [Williams] then observed the incident and saw [the
victim] was the aggressor and [Appellant] was defending himself.”
Appellant's Brief at 70.
Appellant also avers that Tony Mason also sent Appellant's
attorney a letter on August 20, 2016, indicating that he observed
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the assault, saw the victim attack Appellant, and would have
provided favorable testimony to Appellant at trial. Id. Appellant
filed an Application for Remand on September 13, 2016, which
this Court denied without prejudice to Appellant's raising the issue
in his brief to this Court on appeal. Appellant has now done so
and has reiterated his request for an evidentiary hearing. In its
Brief, the Commonwealth does not oppose remand “for the sole
and limited purpose of affording defendant the opportunity” to
present his after-discovered evidence claim to the trial court.
Commonwealth's Brief at 42. We agree.
Based upon the information in the briefs and the certified record,
we are constrained to remand to provide the trial court the
opportunity to develop the record and to rule upon Appellant's
after-discovered evidence claim in the first instance. See Rivera,
supra, at 358–59.
Miller, 172 A.3d at 650–51.
On May 23, 2018, the trial court conducted an evidentiary hearing
pursuant to this Court’s Opinion and order of remand. By its Order of May 30,
2018, the court denied Appellant’s Motion for New Trial Based Upon After-
Discovered Evidence “due to lack of merit.” Trial Court Order and
Memorandum Opinion, 5/30/18, at 1. The court provided its reasoning, as
follows:
Upon completion of the evidentiary hearing held on May 23, 2018,
[the trial court] determined that the testimony offered by the
defense witnesses Larry Williams and Arjuna (also known as Tony
Mason), upon whom the Defendant’s Motion For New Trial was
based, was so contradictory and incredible that this evidence
could not, and would not, have been likely to rendered [sic] a
different outcome at the original trial.
Moreover, each of the proffered witnesses had been available to
the Defendant well before the conclusion of the original trial. The
claimed “after-discovered evidence” did not meet at least two
prongs of the well-established four prong test that would have
warranted a new trial. [Rivera, supra].
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[The trial court] has specifically determined that the sworn
testimony of witness Larry Williams and Arjuna (also known as
Tony Mason), materially contradicted not only each other’s version
of events at issue, but also the trial testimony of unbiased
eyewitnesses and the Defendant’s own version of the attack
elicited during his sworn testimony before the jury.
It was easily apparent from the testimony presented at the
evidentiary hearing that the claimed observations of these two
“after discovered” witnesses Larry Williams and Arjuna Mason
(also known as Tony Mason), of the aggravated assault of the
victim Khayee Murray on October 6, 2013, had been materially
false and concocted approximately three years after the subject
attack while the Defendant and these two persons attended
religious services while serving their respective custodial
sentences at SCI Forrest. Each of these “witnesses” evidenced
their bias and motivation to assist the Defendant because they
viewed the sentence imposed upon the Defendant to be unfair.
Each individual similarly evidenced that they had been connected
to, or known to each other, or the Defendant, in some form or
fashion, well before and well after the instant case was tried before
the jury.
For the reasons stated upon the record and within this instant
memorandum which may be supplemented upon transcription of
the record, it is the determination of this court that to reward this
Defendant with the requested remedy of a new trial based upon
the submitted “after-discovered” evidence would be tantamount
to endorsing deception upon the court to avoid justice.
Trial Court Opinion, 5/30/18, at 1-2.
Appellant has appealed timely from the trial court’s order, and he raises
the following five issues:
1. Should a new trial be granted on the basis of after-discovered
evidence on remand from the direct appeal of two critical
prisoner/eyewitnesses who observed the events and would
have confirmed the Appellant, Steven Miller’s, version and the
fact the alleged victim had planned to attack Mr. Miller and was
the aggressor, and that Mr. Miller acted in self-defense?
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2. Was Judge Coyle’s conclusion that the witnesses were available
before trial not supported by the record since neither witness
came forward before trial to either trial counsel, Mr. Stretton,
or to Mr. Miller, and they could not have been known to Mr.
Stretton, or to Mr. Miller, and they could not have been known
to Mr. Stretton or his investigator since they were incarcerated
and Mr. Miller was placed in segregation after the incident?
3. Was Judge Coyle’s finding that the witnesses were not credible
not supported by the record, particularly since her conclusion
that Mr. Miller and the two witnesses “concocted” this story at
a prison religious service had no basis or support in the trial
record?
4. Did Judge Coyle ignore the standard on remand for after
discovered evidence was a preponderance of the evidence?
5. Did Mr. Miller meet the standard and was the evidence of such
nature and character that a different result was likely?
Appellant’s brief, at 6-7.
We review a trial court's decision to deny or grant a motion for new trial
based on after-discovered evidence for an abuse of discretion or error of law
that controlled the case. Commonwealth v. Lyons, 79 A.3d 1053, 1068
(Pa. 2013); Commonwealth v. Bonaccurso, 625 A.2d 1197, 1199
(Pa.Super. 1993). “Discretion is abused when the course pursued represents
not merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.” Commonwealth
v. Padillas, 997 A.2d 356, 361 (Pa.Super. 2010) (quoting Commonwealth
v. Widmer, 744 A.2d 745, 753 (Pa. 2000)). “If a trial court erred in its
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application of the law, an appellate court will correct the error.” Id. (quoting
Commonwealth v. Hernandez, 886 A.2d 231, 235 (Pa.Super. 2005)).
A trial court may grant a post-sentence motion for a new trial based on
after-discovered evidence if the appellant shows by a preponderance of the
evidence that the after-discovered evidence (1) could not have been obtained
prior to trial by exercising reasonable diligence; (2) is not merely corroborative
or cumulative; (3) will not be used solely to impeach a witness's credibility;
and (4) would likely result in a different verdict. Commonwealth v. Griffin,
137 A.3d 605, 608 (Pa.Super. 2016) (citing Commonwealth v. Castro, 93
A.3d 818, 821 n.7 (Pa. 2014) (citation omitted)). The test is conjunctive; an
appellant must show he has met each of these prongs to be entitled to a new
trial. Id.
Appellant has not met every prong. We need not reach the questions
of whether Appellant has met each of the first three prongs, therefore, as we
conclude his evidentiary proffer failed to meet the fourth and final prong.
The final prong tests whether the after-discovered evidence would have
likely changed the result. In undertaking the fourth prong review, a court
must assess whether the alleged after-discovered evidence is of such a nature
and character that it would likely compel a different verdict if a new trial is
granted. Padillas, 997 A.2d at 365.1
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1Appellant baldly claims the trial court ignored the fact that Appellant only
had the burden of proving by a preponderance of the evidence (more likely
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In making that determination, a court should consider the
integrity of the alleged after-discovered evidence, the motive of
those offering the evidence, and the overall strength of the
evidence supporting the conviction. [C]onflicting accounts are
inherently unreliable and would not compel different verdict in
new trial. [C]ases that have addressed newly-discovered
evidence have focused not simply on the credibility of the person
offering the exculpatory evidence, but on the credibility or
trustworthiness of the evidence itself, as well as the motive, or
other impeaching characteristics, of those offering it.
Id. (citations omitted).
Appellant claims the after-discovered eyewitness testimonies of Messers
Williams and Mason were of such a nature and character as to enable him to
make a fourth prong showing that it was more likely than not a different
verdict would obtain at a new trial with the aid of such testimonies, which he
calls "uncontroverted." We disagree, as we find it was within the sound
discretion of the trial court to find the nature of the witnesses’ testimonies to
be unconvincing and of questionable plausibility within the context of the
existing record.
Appellant dismisses the trial court's adverse credibility determinations
about Mr. Williams and Mr. Mason as mere speculation unsupported by
independent evidence. His dismissal, however, relies on nothing more than
his own willingness to find that the witnesses were, instead, entirely credible.
____________________________________________
than not) that the testimony would achieve a better result. Nothing in the
trial court's commentary during the evidentiary hearing or in its Memorandum
decision and Order supports this claim. The court consistently identifies the
governing four-prong test as the analytical touchstone in the present matter,
and specifically refers several times to the preponderance of the evidence
standard applying here.
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For example, Appellant assails the trial court’s finding that the two
witnesses and he had the opportunity to formulate a plan to offer exculpatory
testimony when they met at religious meetings offered for inmates.
Appellant’s argument in support of this challenge, however, simply asks us to
accept both Mr. Williams' testimony that he did not remember speaking to the
others, and Mr. Miller's testimony that they spoke only briefly because very
little talking was permitted at the meetings.
Appellant also points to the fact that his attorney received letters from
each of the two witnesses as additional proof that they acted independently
in speaking out on the case. This position, too, embraces but one of two
possibilities, and Appellant fails to demonstrate an abuse of discretion when
the court reviewed the record as a whole and reasonably inferred the other
possibility was at play, namely, that the letter writing campaign was likely part
of a collaborative plan.
In his brief, Appellant contends that Williams’ and Mason’s observations
of both the prelude to the assault and the assault itself were unique—and
neither cumulative nor corroborative to other evidence—in that both men
testified Murray, just moments before the altercation, announced his motive
and intention to attack Appellant. Appellant’s Brief at 65. Both Mr. Mason
and Mr. Williams testified they saw Murray initiate the assault and continue to
assault Appellant until the guards intervened. To the degree Appellant was
apparently able to wrest the makeshift knife from Mr. Murray and stab him
repeatedly, while incurring no real injury himself despite being the
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unsuspecting victim in the witnesses’ account, the witnesses stated Appellant
acted only in self-defense. Id.2
For its part, the Commonwealth raises numerous concerns with the
trustworthiness of such testimonies. It questions, for example, the credibility
of Mr. Mason’s assertion that he had no idea that Appellant would have been
arrested for seriously injuring Mr. Murray with multiple stab wounds, whereas
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2 Appellant contrasts the witnesses’ purportedly consistent testimonies with
the inherently conflicted testimony of Officer Rosa, the only security guard
who claimed at trial to witness the altercation from its inception and identified
Appellant as the aggressor throughout. Appellant argues that Officer Rosa’s
testimony “was absolutely and totally inconsistent, contradictory, unreliable[,]
and speculative.” See Appellant’s Brief, at 46-47.
The jury disagreed with Appellant’s credibility assessment of Officer Rosa.
Indeed, there was no dispute at trial that the officer stood as the only
eyewitness to the altercation from its start, and the jury understood that his
testimony was, therefore, most central to its task of determining whether
Appellant acted criminally or in self-defense. Despite hearing extensive cross-
examination on Officer Rosa’s change in testimony with respect to which of
the two combatants was on the phone when the fight began, the jury clearly
credited his consistent testimony that he witnessed Appellant initiate violence
with the makeshift knife.
The trial court’s after-discovered evidence evaluation of the nature and quality
of the new testimonies involved placing such testimonies within the context of
the evidentiary record established at trial and considering whether they are
sufficiently credible and convincing to make it likely that a new trial would end
in a different verdict. See Padillas, 997 A.2d at 365; Rivera, 939 A.2d at
359. To the extent Appellant argues the court abused its discretion by failing
to deem Officer Rosa’s testimony wholly unreliable because it is at odds with
the after-discovered evidence, we disagree. The jury’s credibility
determination carries weight in the trial court’s present analysis, particularly
where the after-discovered evidence consists simply of opposing eyewitness
testimony that fails to undermine Officer Rosa’s testimonial capacity in any
way.
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Appellant remained injury free, when Mason acknowledged that he witnessed
guards subdue Appellant and place him in their custody. This testimony,
according to the Commonwealth, was designed purposely to meet the first-
prong burden of showing the testimony was not available for Appellant’s trial.
When asked on cross-examination whether it was true that Appellant
had been his neighbor at his last place of residence, Mr. Mason answered that
he could not remember his last residence before going to prison. Yet, Mason
was able on direct examination to describe in detail the sequence of events
attendant to the assault. This was, again, in contrast to his inability at times
on cross-examination to answer questions regarding his observations of the
altercation, claiming in such instances that his view was obscured or that he
was returning to his cell in the pod.
The Commonwealth also notes the fortuitous coincidence that two
inmates who happened to witness the CFCF Philadelphia assault in question
also happened to become inmates with Appellant at SCI Forest, attend the
same religious classes as Appellant, overhear Appellant discussing his case,
and express to him their mutual surprise at his conviction and their willingness
to give exculpatory testimony on his behalf. In that regard, Mr. Mason had
no substantive answer to questions asking how he and Williams, who claimed
to know each other well, could not have known each had witnessed the brutal
assault while purportedly standing about 25 feet from one another, could
never have discussed the incident afterward, and could have come to know of
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this great coincidence only upon meeting Appellant at a time when he was
challenging his judgment of sentence.
The Commonwealth also pointed to other inconsistencies implicating the
credibility of the witnesses’ testimonies. For example, Mr. Mason claimed he
and Mr. Murray had a private conversation near a water fountain just before
Murray approached Appellant, but Mr. Williams claims he overheard from
about “two car lengths away” Mr. Murray’s stated intentions of harming Miller.
The witnesses also provided varied accounts regarding the details of their talks
with Appellant.
On balance, and in consideration of the governing standard, this record
leads us to share the trial court’s opinion that the after-discovered testimonies
were of an unpersuasive nature, as they suffered from several implausibilities
and otherwise failed to undermine directly Officer Rosa’s established credibility
at trial. For these reasons, we conclude that Appellant’s after-discovered
evidence claim fails under a fourth prong analysis, to the demise of his request
for a new trial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/19
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