Commonwealth v. Choice , 2003 Pa. Super. 288 ( 2003 )

OPINION BY

BENDER, J.:

¶ 1 This is an appeal from an order denying Appellant’s PCRA petition. Appellant raises one question for our review, does the testimony of two police officers, discovered in a civil proceeding occurring after Appellant’s trial, indicating that the Commonwealth’s only eyewitness told them that he did not look at the robber’s face, that he only caught a glimpse of the robber, and that Appellant only resembled the robber, constitute after-discovered evidence sufficient to grant a new trial. We affirm.

¶2 The facts relevant to the present appeal are:¹ Appellant was arrested for armed robbery in the early morning hours of August 27, 1996. Bernard Hinton was walking on Willows Avenue near 51st Street in Philadelphia on his way home from work and had just purchased some Chinese food when he was approached by three black males. One of the men held a handgun to Mr. Hinton’s throat while the other two went through his pockets taking anything of value. The items taken from Mr. Hinton included the bag containing the Chinese food. The men left Mr. Hinton and began walking up 51st Street. In turn, Mr. Hinton made his way to a nearby fire station where he found police officers Jimmy Brown and Bruce Wright. Mr. Hinton gave the officers a description of the robbers. Of the gunman, he described the assailant as a heavy set male, approximately 5'8", and wearing a red t-shirt.

¶ 3 The officers radioed flash information and proceeded in a police wagon in the direction where the robbers had been walking. Upon reaching the corner of 51st and Willows, Officer Brown observed three males down the street walking away from him. As the officers turned to follow the three males, the suspects became aware of the police vehicle and began running in the opposite direction. The officers pursued and then joined up with other responding officers to comb both Willows Avenue and Pentridge Street, which runs parallel to Willows, between 50th and 51st streets, as well as an alleyway. At least two individuals were apprehended as suspects in the robbery.

¶ 4 One of the officers that responded to the flash information, Albert Jones, began combing the front of Pentridge Street and noticed a brown paper bag on the porch of 5016 Pentridge Street. Officer Jones was aware that a bag containing food had been taken from Mr. Hinton and as he approached, he believed he could smell food. Officer Jones began rummaging around the porch whereupon a black male located across the street interrupted him and asked what he was doing indicating that that was the house where he resided. Officer Jones then asked Appellant if the brown bag was his. Appellant responded affirmatively, at which point Officer Jones asked Appellant what were the contents of the bag, however, Appellant was unable to describe the contents of the bag. Asked why, Appellant responded that someone had purchased the food for him and dropped it off on the porch. Soon thereafter, Mr. Hinton arrived on the scene. When asked what the contents of the bag taken from him were, Mr. Hinton accurately described the contents of the bag found on the porch. Mr. Hinton also indicated that Appellant was the man that had held the gun to his throat even though Appellant was wearing a white shirt. An additional search of the porch resulted in the discovery of a red shirt with a gun wrapped in it. Mr. Hinton further indicated that the shirt was the one worn by the gunman and that the gun found on the porch was the one that had been held to his throat.

¶ 5 Appellant was tried twice on a variety of charges stemming from the robbery. The first trial ended in a mistrial on July 15, 1997, when the jury was unable to return a verdict. In the second, held in October 1997, Appellant was convicted. At trial, Mr. Hinton positively identified Appellant as the gunman without any sense of equivocation. Appellant was sentenced on October 29, 1998. His appeal to this Court resulted in affirmance on January 27, 2000. Commonwealth v. Choice, 752 A.2d 419 (Pa.Super.2000) (unpublished memorandum).

¶ 6 Subsequent to his conviction, a' reporter for the Philadelphia Daily News, Dan Geringer, took an interest in the case and wrote an article arguing that Appellant was an innocent man wrongly convicted. In the article, entitled “He Was Left Holding The Bag. Innocent Man Talked His Way Into Arrest For Armed Robbery,” Mr. Geringer was critical of the police investigation of the crime. In response to the article, Officer Albert Jones and Detective Brian Greivous sued the paper for defamation. During litigation of the defamation action, depositions were taken of several of the police officers who responded to the robbery or conducted the investigation. The depositions constitute the after-discovered evidence that are the basis of Appellant’s PCRA action. In these depositions, certain police officers indicated that Mr. Hinton told them that he was directed by the gunman not to look at him and that Mr. Hinton had only gotten a glimpse of the gunman.

¶ 7 In response to these depositions, Appellant filed a Motion for New Trial Based Upon After-Discovered Evidence/PCRA petition on July 17, 2001, asserting that evidence discovered after trial warranted the granting of a new trial. The petition was dismissed without a hearing on February 15, 2002. The present appeal followed.

¶ 8 Appellant asserts that he is entitled to a new trial on the basis of the after-discovered evidence. The Commonwealth counters with an assertion that the petition was untimely, but that in any event Appellant did not meet the requirements for a new trial. The Commonwealth further asserts that the case of Commonwealth v. Dennis, 552 Pa. 331, 715 A.2d 404 (1998), controls the present case. We agree.

¶ 9 In Dennis, the Supreme Court stated:

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.

Id. at 415. At issue in Dennis was an after-discovered statement similar to the ones at issue here. The Court stated:

Appellant argues that the case should be remanded to consider the statement of Shanaqua Ramsey, a friend of Zahra Howard, one of the eyewitnesses to the murder. On April 3, 1997, Ramsey gave an affidavit in which she stated that when Zahra Howard returned to school after the murder, she told Ramsey that she was not sure if the person she identified (Appellant) was the killer because she did not get a good look at the killer. Ramsey’s statement fails to meet at least two prongs of the after-discovered evidence test: the alleged conversation between Ramsey and Zahra Howard took place nearly a year before trial, and there is no evidence that it was discoverable only after trial; and the evidence would only be used to impeach Zahra Howard. Hence, this claim warrants no relief.

Id. at 415-16.

¶ 10 It would be difficult to find a case more on point than Dennis.², The after-discovered evidence proffered in the present case was deposition testimony that would suggest that Mr. Hinton really did not get a good look at the gunman and, thus, his unequivocal identification of Appellant at trial was suspect. But this is essentially the very same evidence that is the subject of the quoted material from Dennis, and which was viewed by the Supreme Court as being “only” impeachment evidence. As such, we believe Appellant’s claim fails.

¶ 11 Order affirmed.

¶ 12 Judge KLEIN files a Dissenting Opinion.

1 . As is often found, the facts are somewhat contradictory, even when viewed in a light favoring the Commonwealth as the verdict winner. Here, we provide a basic sketch from which analysis of Appellant’s claim can proceed. The factual summary is not meant to be comprehensive.

2 . We acknowledge the scholarly discourse found in the Dissenting Opinion of our colleague Judge Klein on Dennis, the “four-prong test,” and precedent from which it originated and has been passed down. Although we believe the Dissent presents a convincing argument that the "solely for purposes of impeachment” prong of the test is not particularly well founded and may be overbroad and un-wise, we still find the holding of Dennis to be on-point and, thus, controlling.

Dennis involved the same circumstances as here, a third-party statement that the key witness admitted off the witness stand that she did not get a good look at the perpetrator. Of course, this statement contradicted the actual trial testimony of the witness identifying the defendant as the perpetrator, which was unequivocal. Under these facts, the Supreme Court found that the statement failed to meet the after discovered evidence test for two reasons. First, there was no evidence that the statement was discoverable only after trial and, second, because the evidence would only be used to impeach the witness.

While the Dissent makes an impassioned case for why after-discovered evidence that would be used solely for impeachment should sometimes provide a basis for a new trial, this does seem to contradict the language of Dennis. Moreover, while the Dissent exposes that this “prong” of the test may have been injudiciously engrafted into the test, it still appears to be the case that, at this point in time, it has been adopted as a statement of law by the Supreme Court, even if inconsistently applied at times. Thus, we feel compelled to follow the test as set forth in Dennis.

Perhaps, in due course, this test will be subjected to the same scrutiny by our Supreme Court as evidently it has been reexamined for its wisdom by our colleague Judge Klein.