Commonwealth v. Small, E., Aplt.

[J-42-2o18]
lN THE suPREME couRT oF PENNSYLvANlA
MIDDLE DisTRlcT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
CO|\/ll\/|ONWEALTH OF PENNSYLVAN|A, 1 No. 63 |\/lAP 2017
Appellee : Appea| from the Order of the Superior
' Court at No. 245 l\/lDA 2016 dated
: Apri| 21, 2017 Reversing and
v. : Remanding the PCRA Order of the
' Dauphin County Court of Common
; Pleas, Criminal Division, at No. CP-
ER|C EUGENE Sl\/lALL, : 22-CR-1458-2011 dated January19,
' 2016.
Appellant
SUBl\/l|TTED: l\/larch 20, 2018
OP|N|ON
JUST|CE DOUGHERTY DEC|DED: Ju|y 18, 2018
ln this discretionary appeal, we consider the meaning of “merely corroborative or
cumulative evidence” in the context of determining whether a new trial is warranted based
on after-discovered evidence
|. Background
ln the early morning hours of l\/larch 7, 2011, William Price was killed after he
suffered a contact gunshot to the left side of his head while he was outside Club Egypt, a
nightclub in Harrisburgl Pennsylvania. No one saw the shooting, but a number of
witnesses saw Eric Small (“appellant”) walking away from the nightclub with his right arm
around Price only moments before the fatal gunshot. From this and other evidence
detailed below, police identified appellant as the shooter, and the Commonwealth
charged him with first-degree murder and violations of the Pennsylvania Uniform Firearms
Act, 18 Pa.C.S. §§6101-6127.
The identity of the shooter was the focal point of appellant’s trial. The
Commonwealth contended appellant killed Price, but the defense argued the shooter was
actually Pedro Espada (“Espada”), appellant’s friend who was also outside the nightclub
just before the shooting Because the after-discovered evidence at issue in this appeal
directly implicates these conflicting viewpoints, we begin by reviewing the trial evidence
supporting each alternative theory.
A. The Commonwealth’s Theory at Tri'a/
The Commonwealth’s theory of the case revolved around appellant and Espada’s
close relationship As multiple witnesses described it, the two were like foster brothers,
with Espada having grown up with appellant and his sister, Lisa Sma||. Notes of
Testimony (“N.T.”) 8/7/12, 192-94; N.T. 8/8/12, 125-26. lt was out of loyalty to Espada,
the Commonwealth contended, that appellant shot Price, after he learned Price had
assaulted Kenosha Tyson, the mother of Espada’s children.1
At tria|, Tyson detailed Price’s assault on her, which occurred two days before the
murder at another nightclub in Harrisburg known as The Rebound. N.T. 8/7/12, 146-47.2
Tyson explained she was at The Rebound with Lisa Sma|l and several other friends when
Price, whom she did not know, pushed her and pulled her hair as she tried to walk by him_
/d. at 126-28. Although Tyson never told Espada about this incident _ the two were no
longer in a relationship at that point _ he and appellant nevertheless found out about it
by the time they encountered Price at Club Egypt two nights later. /d. at 130, 149-50.
l The trial transcripts incorrectly identify Tyson’s first name as “Keaosha.”
2 As discussed infra, although Tyson testified as a Commonwealth witness at trial, she is
also the source of appellant’s after-discovered evidence claim.
[J-42-2018] - 2
With this motive as a backdrop, the Commonwealth presented multiple witnesses
who were with appellant prior to or after the shooting Each witness supplied some piece
of circumstantial evidence linking appellant to Price’s murder.
Ali Williams, Lisa Small’s boyfriend, testified appellant and Espada “kept looking
at [Price]” after they spotted him inside Club Egypt. N.T. 8/8/12, 85. When Williams heard
appellant talking to Espada in a hushed manner and saw him moving his hand around,
he asked what they were talking about. /d. at 85-86. Espada told him not to worry about
it. /d. Later, as the nightclub was closing, appellant, Williams, Espada, and the rest of
their group exited around the same time. /d. at 86-87. Once outside Williams saw
appellant approach Price _ who was talking with his friendl Shamar Evans - and heard
appellant tell Price he wanted to speak with him. /d. at 87. Appellant proceeded to put
his right arm around Price and lead him down the street; Evans, meanwhile continued to
the car Garrett Gibson had pulled up for him and Price. /d. at 87-88. At that point,
Williams noticed appellant “had something . . . in his left hand.” /d. at 88. Moments later,
as Williams briefly turned to cross the street, he “heard a pow.” /d. He turned back around
and saw appellant standing over Price’s shaking body before appellant ultimately fled in
the direction of the riverfront. /d. at 88, 90.
According to Evans’s testimony, he had just exited the nightclub with Price when
a man wearing clothing similar to that described by other witnesses as matching
appellant’s outfit, grabbed Price and put his arm around his shoulder N.T. 8/7/12, 206-
08. Price told Evans he was fine, so Evans continued to Gibson’s car. /d. at 211; N.T.
8/8/12, 21-23. As Evans began to sit inside, he looked up and saw Price falling on his
back. N.T. 8/7/12, 208. Evans alerted Gibson and the two exited the car and ran to
Price, /d. at 208-09; N.T. 8/8/12, 24. When they saw Price’s eye was “swo||en,” they
began to chase the person Evans had seen with his arm around Price moments before
[J-42-2018] _ 3
the shooting N.T. 8/7/12, 209, 213, 221. They stopped following the man when they
turned into a dark alleyway and someone fired two more gunshots. /d. at 213-15, 222;
N.T. 8/8/12, 25-27.
Lisa Small similarly testified she saw appellant with his right arm “wrapped around”
Price as the pair walked away from the nightclub towards the corner. N.T. 8/7/12, 156.
When she turned to face her car, she heard a gunshot. /d. at 162. She looked back and
saw Price lying on the ground. /d. ln a signed and recorded statement to police, she
stated appellant was the only person she saw near Price immediately after she heard the
gunshot, and that she watched Evans and Gibson chase appellant towards the riverfront.
/d. at 173-74, 179-81.
Andre Knight, another friend of appellant and Espada’s, testified he was standing
in front of Club Egypt when he saw appellant approach Price and put his arm around him.
N.T. 8/8/12, 48-50. As Knight began to cross the street, he heard a gunshot ld. at 50.
He turned and saw appellant running towards the river, with Price’s two friends (Evans
and Gibson) chasing after him. /d. at 58-59. Knight testified he reunited with several
members of their group _ including appellant _ on a nearby street shortly after the
shooting ld. at 60-62, 75-76. The group went to Lisa Small’s apartment /d. at 61.3
There, Knight heard appellant laughing and telling his friends, “Cuz got what he
deserved.” /d. at 61-62. Knight further heard appellant say, “[w]e did what we had to do,"
before instructing them to “[k]eep the girls in check[,]" /`.e., “[m]ake sure they don’t say
nothing.” /d. at 63. When confronted with a signed statement he gave to police, Knight
admitted he previously stated appellant also told them “if it came down to it, pin it on my
boy Dro." /d. at 65. Knight explained “Dro” is Pedro Espada’s nickname /d. at 43.
3 Williams’s testimony differed from Knight’s on this point. Williams explained appellant
showed up at Lisa Small’s apartment following the shooting, but that he came by himself
after the rest of the group had already arrived. N.T. 8/8/12, 92.
[J-42-2018] - 4
Several police witnesses provided circumstantial evidence implicating appellant as
the shooter as well. Officers Ed Grynkewicz and Ryan Yarne|l testified they followed
several tracks of footprints in the snow, one of which led from the crime scene, to the
riverfront, and then back to appellant’s apartment complex. N.T. 8/7/12, 37-46, 73-76.
No one answered when the officers knocked and announced their presence at that
location /d. at 76. A few hours later, however, Detective John O’Connor returned to
canvass the apartment complex when an officer on his team heard noises inside
appellant’s apartment /d. at 83-85. Appellant emerged from the apartment a few minutes
|ater. /d. at 85. When the officers spoke with him and asked if he heard their previous
knocking, he acted “rea||y nervous” and “[j]umpy.” /d. at 85-86.
Forensic evidence was also central to the Commonwealth’s theory of the case Dr.
Wayne Ross, a Forensic Pathologist, testified the cause of Price’s death was a gunshot
wound to the head and the manner of death was homicide N.T. 8/7/12, 28-29. Dr. Ross
explained the fatal bullet entered “the left side of [Price’s] face just next to the left eye”
and exited the right side of his head. /d. at 21-22. lmportantly, he described finding soot
around the wound, which indicated it was a “contact gunshot wound,” meaning the “barrel
[of the gun] was jammed up or pressed into the face.” /d. at 22. According to Dr. Ross’s
expert opinion, the gun that killed Price had to be pressed into the left side of his face in
order to leave the soot and barrel impression he examined /d. at 26-27.4
4 Given how close to Price the shooter must have been, Detective Dona|d Heffner
examined appellant’s clothing for forensic evidence, including blood and gunshot residue
N.T. 8/9/12, 42-43. However, appellant admitted he had changed his t-shirt by that point,
and Detective Heffner observed appellant’s other clothes looked as if they had been
washed, as there was no sign appellant “had gone 17 blocks in snow and slush and road
salt in those [s/'c] clothing.” /d. at 43. Detective Heffner also believed appellant had
changed into a brand new pair of tennis shoes. /d.
[J-42-2018] - 5
ln addition to circumstantial evidence the Commonwealth presented some direct
evidence of appellant’s guilt through the testimony of two witnesses to whom appellant
confessed about killing Price.
Kenneth Hibbert, an inmate who shared a cell with appellant at the Dauphin County
Prison, testified appellant told other inmates he was walking with his arm around Price
when Price was murdered N.T. 8/9/12, 10-11. ln private, appellant admitted to Hibbert
he was the shooter, telling him on at least two occasions he “killed William Price for Pedro
[Espada] and turned William Price’s face into hamburger meat.” /d. at 12. After appellant
learned Hibbert had conveyed those admissions to police, he threatened to kill Hibbert
“|ike he killed William Price.” /d. at 13. Sergeant Ky|e Bahoric of the Dauphin County
Prison testified he overheard one such threat after appellant and Hibbert got into an
argument, during which appellant stated, “Put him in his cell and l will kill him, too.” /d. at
19-20.
Jeffrey Reid also shared a cell with appellant at the Dauphin County Prison. N.T.
8/9/12, 25, 27. Reid testified that, after appellant was arrested, he offered to trade a .25
caliber handgun for Reid’s 9mm handgun /d. at 25-26. Appellant told Reid he “needed
to get rid of’ the .25 caliber handgun because it was “hot[,]” which Reid understood to
mean a crime had been committed with it _ specifically, the murder of Price. /d. at 26.
When Reid asked appellant about Price’s murder, appellant told him Price “had problems
with [appe|lant’s] sister and his boy [Espada].” /d. at 27.5 Appel|ant then admitted “he
shot [Price] in his head." /d. As appellant explained it to Reid, “the beef really started” at
The Rebound, but “it ended at [Club] Egypt.” /d. at 28. Reid testified appellant confessed
5 There was evidence Price got into an altercation with Lisa Small the same night he
assaulted Tyson. See N.T. 8/7/12, 148-49 (Lisa Small testifying she was aggravated
Price had “bumped” her multiple times while at The Rebound).
[J-42-201 81 - 6
four or five times to killing Price, and he made several threats to other inmates that he
“could do the same thing to them.” ld.
B. The Defense’s Theory at Trial
The defense did not present any witnesses of its own, but relied on the
Commonwealth’s witnesses to establish its theory Espada was the shooter,
With respect to motive, the defense highlighted the fact Tyson and Espada had
two children together, the most recent of which was born only two weeks before Price
assaulted Tyson. N.T. 8/7/12, 131-32. At least one witness testified Espada was more
upset over Price’s assault of Tyson than appellant was, thus implying Espada had a
stronger incentive to kill Price. N.T. 8/8/12, 132.
The defense also demonstrated Espada was in the vicinity when appellant led
Price down the street with his arm around his shoulder Williams testified he saw Espada
walking behind and to the left of appellant and Pricejust before the shooting N.T. 8/8/12,
89, 101. Knight similarly stated he saw Espada following behind the men, with “a little
space” between them. /d. at 54. ln addition, Lisa Small testified she saw Espada walking
at “a fast pace” in the direction of appellant and Price before the fatal gunshot. N.T.
8/7/12, 161.
Williams, Knightl and Lisa Small provided other circumstantial evidence against
Espada as well. Lisa Small testified she saw Espada fire twice at Evans and Gibson as
he fled from them towards the river. N.T. 8/7/12, 177.6 Williams corroborated this
testimony to the extent he testified he saw the two men chase after Espada, rather than
appellant N.T. 8/8/12, 100. l\/loreover, Williams testified Espada later told another
individual, Anthony l\/li|ler, where he had stashed a gun near the riverfront /d. at 101-03.
6 This testimony was contrary to her signed statement to police, in which she stated she
saw Evans and Gibson chase appellant N.T. 8/7/12, 178~79.
[J-42-2018] - 7
At some point after the murderl Williams accompanied l\/liller, Knight, and another friend
to that location and retrieved the weapon. /d. Final|y, Knight testified he had seen Espada
with guns in the past, and explained the members of their group frequently passed them
around. /d. at 72-73.
As for the police witnesses, the defense elicited testimony suggesting Espada was
once the target of their homicide investigation Officer Yarnell testified he traced a second
pair of footprints in the snow from the murder scene to Espada’s apartment N.T. 8/7/12,
69, 80. This evidence led Detective O'Connor to later execute a search warrant at that
residence /d. at 88-89. He also enlisted appellant to record a phone call with Espada in
an attempt to procure evidence against him, but the endeavor was unsuccessful. /d. at
89-90. Detective Ryan Neal was similarly unsuccessful in his effort to have Erica Sma||,
another sister of appellant’s, record a phone call with Espada. N.T. 8/8/12, 12.
To counter the Commonwealth’s direct evidence against appellant, the defense’s
strategy was twofold. First, it sought to impeach Hibbert and Reid _who stated appellant
confessed to them while in prison _ by demonstrating they testified against appellant to
obtain favorable treatment in their own pending cases. N.T. 8/9/12, 15-17, 30-32.
Second, and most relevant to this appeal, the defense emphasized there was also
evidence Espada himself had, on at least two occasions, confessed to the murder.
Espada first confessed in a phone call to Jasmine Spriggs, his then-girlfriend,
during which he told her “he didn’t know what to do and he didn’t mean to shoot [Price.]”
N.T. 8/8/12, 11. Spriggs did not convey this confession to police directly. /d. lnstead,
Lisa Small, who learned of Espada’s confession through Spriggs, relayed that fact to
Detective Neal while giving a voluntary, second statement to police one week after the
murder, at the urging of appellant’s family. /d. at 8-9, 11.
[J-42-2018] - 8
Deleon Dotson, who was part of appellant and Espada’s group of friends and was
incarcerated for an unrelated incident at the time of the murder, described Espada’s
second confession N.T. 8/8/12, 119-22. He testified that he learned of the murder when
he called Espada from prison the day it happened ld. at 132. At that time, Espada told
him he “can’t talk right now” and that he “might be out at the county [prison] with [him]."
ld. On another occasion, Dotson testifiedl Espada provided more details, explaining “he
walked up beside [appe|lant], walked around his left side, and . . . just pointed the gun
and shot” from “about 3 to 5 feet away.” /d. at 134-35. Espada also told Dotson appellant
had “bought that,” meaning appellant had taken the blame for the murder even though he
did not commit it. ld. at 136. Despite these admissions, Dotson testified he did not believe
Espada killed Price; instead, he believed Espada was “puffing” or bragging to gain street
credibility /d. at 136-37.
C. Procedura/ History
Presented with the above evidence supporting the parties’ conflicting theories, the
jury credited the Commonwealth’s account and convicted appellant of first-degree murder
and firearms not to be carried without a license7 On October 1, 2012, the trial court
imposed an aggregate sentence of life imprisonment
On direct appeal, appellant argued the inconsistencies inherent in the competing
theories as to the shooter’s identity rendered the verdict against the weight of the
evidence The trial court found otherwise, concluding in its Pa.R.A.P. 1925(a) opinion
that, “while there are conflicts in the evidence, such discrepancies are not sufficient to
render the jury verdict so contrary to the evidence as to shock one’s sense of justice.”
Trial Ct. Op., 6/7/13, 6. The Superior Court agreed |n an unpublished decision, it
7 18 Pa.C.S. §2502(a) and 18 Pa.C.S. §6106(a)(1), respectively The Commonwealth
initially charged, but later no//e prossed, a count for persons not to possess a firearm, 18
Pa.C.S. §6105(a)(1).
[J-42-2018] - 9
affirmed appellant’s judgment of sentence and this Court denied further review.
Commonwealth v. Sma//, 2021 MDA 2012 (Pa. Super., filed Oct. 9, 2013)l appeal denied,
94 A.3d 1009 (Pa. 2014). Appellant did not seek a writ of certiorari in the United States
Supreme Court.
On September 2, 2014, appellant filed a timely petition pursuant to the Post-
Conviction Re|ief Act (“PCRA”), 42 Pa.C.S. §§9541~9546. The PCRA court8 appointed
counsel, who subsequently interviewed Tyson as part of his investigation On March 12,
2015, Tyson executed the following notarized statement:
|, Kenosha Tyson, withheld certain personal knowledge from the
Harrisburg Po|ice Department when questioned regarding the murder of
William Price, Jr. Further, l continued to withhold that personal knowledge
while testifying at [appe|lant]’s jury trial. Upon reflection l believe l must
make the proper authorities aware of what occurred immediately following
the murder.
Within hours of the murder, the father of my children Pedro Espada,
specifically admitted to me “l shot him" referring to l\/lr. Price, Jr.
| was not forthright with this information because l feared any
connection between me and the murder would have detrimentally affected
Children and Youth proceedings regarding the custody of my children
Further, numerous threats were being made around my neighborhood
immediately following the murder pertaining to anyone providing information
to police
l am willing to testify to the above facts during any future court
proceedings, including a new trial, should [appe|lant] receive that
opportunity
| have neither been forced nor threatened in any way to make this
statement Further, no promises have been made to me to make this
statement l make this statement entirely of my own freewill.
Affidavit of Fact, Reproduced Record (“R.R.") at 270(a).
8 The Honorable Scott A. Evans of the Court of Common P|eas of Dauphin County
presided over both appellant’s trial and his post-conviction proceedings
[J_42-2018] - 10
Armed with Tyson’s new affidavit counsel filed an amended PCRA petition on
March 23, 2015, alleging appellant was entitled to relief under 42 Pa.C.S. §9543(a)(2)(vi)
(permitting relief where the petitioner proves by a preponderance of the evidence that the
conviction or sentence resulted from “[t]he unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would have changed the outcome
of the trial if it had been introduced”).9
The PCRA court held an evidentiary hearing on l\/|ay 12, 2015. At the hearingl
Tyson testified that, within twenty-four hours of the murder, Espada called her and stated
he was coming to her apartment N.T. 5/12/15l 56. When Espada arrived, Tyson noticed
he “was looking a hot mess. . . . He cut his hair and he just looked like he was up all night
crying and stuff and he was like shaken up.” /d.10 She asked him what was wrong ld.
After stating he had “messed up[,]” Espada proceeded to tell Tyson he killed Price. /d. at
56-57. He told her he did it because of Price’s prior assault on Tyson /d. at 57-58. He
also stated everybody was “in his ear the whole night talking about he should get him."
/d. at 57.
According to Tyson, she did not tell police about Espada’s confession when they
interviewed her after the murder because her “two oldest kids were in foster care and
9 The amended petition also presented a claim of ineffective assistance of trial counsel,
which the PCRA court rejected As appellant did not appeal that ruling, we do not discuss
it further.
10 We note Tyson’s testimony regarding when she spoke to Espada was internally
inconsistent While she unequivocally stated in her affidavit that she saw Espada “[w]ithin
hours of the murder,” R.R. at 270(a), and she testified to that effect when prompted by
defense counsel at the evidentiary hearing, her testimony seemingly differed on cross-
examination Notab|y, when the prosecutor asked Tyson if she had cut Espada’s hair,
she responded “| didn’t give him a haircut When he came to my house the day he told
me he shot [Price], that was like a week later when his hair was already cut.” N.T.
5/12/15l 67 (emphasis added).
[J-42-2018] - 11
[she] was getting a lot of threats on Facebook.” ld. at 59. She claimed: “[T]he police were
threatening me that they would make sure my kids would stay in foster care and when l
would have the baby l was pregnant with, they would take her and lock me up and make
sure | lose my apartment and stuff like that.” /d.11 As for her sudden willingness to come
fon/vard, Tyson explained she had “been praying a lot” and wanted to remove the stress
she bore from withholding this information /d. at 60.
On cross-examination the prosecutor challenged Tyson with the signed statement
she gave to police on l\/larch 15, 2011. ln that statementl she told Detective Heffner she
spoke with Espada at some point after Price was killed, but denied they talked about the
murder /d. at 63. Although Tyson admitted to signing the l\/larch 2011 statement, she
claimed at the evidentiary hearing that she did so without reading it; she also claimed the
Detective “wrote it very different from what [she] said.” /d. at 63-64. When asked why
she failed to report the threats made against her, she stated she did let police know about
them, but asserted the “police were some of the people that were threatening [her,]” and
they told her there was nothing they could do. ld. at 65, 68.
On January 19, 2016, the PCRA court granted a new trial based on appellant’s
after-discovered evidence claim. ln an opinion accompanying its orderl the PCRA court
acknowledged that, to obtain relief, a petitioner raising a claim of after-discovered
evidence must demonstrate 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
11 We note this statement, too, is inconsistent with other evidence Specifically, Tyson
testified at trial that she had already given birth approximately two weeks before the
murder N.T. 8/7/12, 131-32.
[J-42~2018] - 12
PCRA Ct. Op. at 13, citing Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008)
(additional citations omitted). The court explained Tyson’s testimony satisfied all four
factors
First, the court found it doubtful that Tyson’s testimony could have been obtained
prior to trial by the exercise of due diligence ld. at 14. _This was so, the court concluded
because Tyson’s fear regarding the custody of her children and the threats made against
her created an incentive to withhold the information /d.
Turning to the second factor, the court acknowledged Tyson’s testimony was “to
some extent cumulative/corroborative, as other persons at trial testified that Mr. Espada
was or could have been the shooter[.]” /d. at 15. Nevertheless, invoking “modification
and common sense," the court concluded it was not merely corroborative or cumulative
because the evidence linking appellant to the murder was largely circumstantial and
Tyson’s new testimony “goes to the very heart of the defense’s theory" that Espada was
the shooter ld. |n that vein, the PCRA court relied heavily on this Court’s decision in
Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995) (upho|ding a grant of relief
in the form of a new trial after concluding the recantation testimony of a central witness
was “not merely cumulative or corroborative given the tenuous nature of the
circumstantial evidence connecting [the defendant] to the crime”).
For the same reasons that applied to the second factor, the court opined, Tyson’s
testimony would not be used solely to impeach the credibility of a witness. /d.
Accordingly, with respect to the fourth and final factor _ whether the evidence would
likely result in a different verdict at a new trial - the PCRA court concluded:
ln light of the circumstantial evidence at tria|, and not a shred of forensic
evidence to support [appe|lant] as the shooter, a different outcome is
probable lf credited by a jury, l\/|s. Tyson’s statement and testimony
regarding l\/lr. Espada’s admission to her would likely result in a different
verdict
[J-42-2018] - 13
ld. at 16. The court came to this conclusion despite recognizing “the limitations inherent
in recantation testimony, which has been characterized as ‘extremely unreliable’" /d. at
14, quoting Commonwealth v. Williams, 732 A.2d 1167, 1180 (Pa. 1999) (internal citation
omitted). ln this regard the PCRA court explained Tyson’s new testimony was more
properly deemed a “recantation of silence," because it “did not contradict her prior
statements or trial testimony,” and thus it “cannot be considered recantation testimony in
the traditional sense[.]” PCRA Ct. Op. at 14.
The Commonwealth appealed claiming the PCRA court abused its discretion in
finding Tyson’s testimony credible and not merely corroborative or cumulative of the
evidence presented at trial such that it warranted PCRA relief. The Superior Court agreed
on both points and reversed the order granting a new trial.
Preliminarily, the Superior Court observed that the PCRA court misstated the
record by declaring that Tyson did not contradict her prior statements or trial testimony.’"
Superior Ct. Op. at 10, citing PCRA Ct. Op. at 14. Pointing to Tyson’s l\/|arch 15, 2011
statement to police, which the Commonwealth presented at the evidentiary hearing, the
panel asserted the PCRA court was “technically incorrect” in re-characterizing Tyson’s
new statement as a “recantation of silence.” Superior Ct. Op. at 11, citing N.T. 5/12/15,
62-63. The panel further held the PCRA court’s determination that Tyson’s testimony
was not merely corroborative or cumulative was unsupported by the record Superior Ct.
Op. at 12. ln addition to citing the PCRA court’s concession that the new evidence was
to some extent corroborative or cumulative, the panel noted the PCRA court failed to
identify any other non-cumulative purpose that Tyson’s testimony would serve /d. at 12-
13. instead according to the panel, the PCRA court relied only on the fact Tyson’s
testimony “goes to the very heart of the defense’s theory at trial,” a fact which the Superior
[J_42~2018] - 14
Court found “only serves to confirm that the testimony is cumulative corroborative and
previously litigated.” ld. at 13 n.14.
Next, the panel faulted the PCRA court for accepting Tyson’s testimony “with no
apparent corroboration." ld. at 15, After citing the requirements for the admissibility of a
hearsay declaration against penal interest, see Pa.R.E. 804(b)(3), the panel stated it was
“at a loss to discern what corroborating circumstances are supposed to indicate the
trustworthiness of Ms. Tyson’s latest statement.” /d. at 14. The panel noted:
[Tyson] denied reading the inconsistent statement she had signed in 2011.
She blamed ‘many people,’ including fami|y, friends, and the police for her
reluctance to testify at trial about her now ‘new’ evidence She claimed she
had called the police about witness intimidation but was ignored She
testified she was still receiving threats, but didn’t care what people were
saying, and just chose to ignore it.
ld. at 14-15 (emphasis in original) (internal citations omitted). |n the panel’s view, not only
did the PCRA court fail to consider these circumstances but, “[i]n fact, the court did not
even make an assessment of [Tyson's] credibility[.]” /d. at 15.
Final|y, the Superior Court panel stated the PCRA court’s reliance on McCracken
was misplaced lnstead, the panel found the more pertinent authority was its own
decision in Commonwealth v. Padi//as, 997 A.2d 356, 365 (Pa. Super. 2010) (“Where the
new evidence . . . supports claims the defendant previously made and litigated at trial, it
is probably cumulative or corroborative of the evidence already presented.”). Ultimately,
the Superior Court concluded “Tyson’s recantation testimony, identifying Espada as the
shooter, was merely cumulative and corroborative of evidence previously presented at
trial, in support of the acknowledged defense theme of the case.” ld. at 17.
We granted allowance of appeal to consider the following issue: “Whether the
Superior Court erred in reversing the PCRA court’s grant of a new trial based on after-
discovered evidence by finding that Tyson’s testimony was merely cumulative and
corroborative of the exculpatory evidence presented at [appe|lant]’s trial?”
[J-42-2018] - 15
Commonwealth v. Sma//, 172 A.3d 1117 (Pa. 2017) (per curiam). Our review of the grant
or denial of PCRA relief is limited to examining whether the PCRA court’s findings of fact
are supported by the record and whether its conclusions of law are free from legal error.
Commonwealth v. Cox, 146 A.3d 221, 226 n.9 (Pa. 2016). The PCRA court’s credibility
determinations, when supported by the record are binding on this Court; however, we
apply a de novo standard of review to the PCRA court`s legal conclusions
Commonwealth v. Burton, 158 A.3d 618, 627 n.13 (Pa. 2017).
With these standards in mind we consider the parties’ arguments Appellant
acknowledges there was other evidence at trial that Espada committed the murder -
including Espada’s confessions to Dotson and Spriggs _ but argues Espada’s
confession to Tyson is “different.” Brief for Appellant at 17. Drawing language from cases
interpreting cumulative evidence in the context of harmless error, appellant contends that,
for after-discovered evidence to be “merely” cumulative there must be “substantial
similarity, in type of evidence and exculpatory factual details, between the after-
discovered evidence and the evidence presented at trial of which it is cumulative” /d. at
24 (citation and internal brackets omitted). Appellant argues Espada’s confession to
Tyson “does not have substantial similarity in exculpatory factual details compared to the
other two confessions” and thusl it is not “merely” cumulative ld. at 28. ln response the
Commonwealth claims the new evidence is “wholly cumulative,” casting Tyson as “simply
another ‘Dotson’ alleging what Espada said after the murder.” Brief for Appellee at 28.
The Commonwealth also argues the circumstances surrounding Tyson’s testimony
rendered it incredible and argues it would not have changed the outcome of the trial. ld.
at 28-32. Our review of the parties’ competing positions regarding Tyson’s new statement
necessarily occurs within the context of our jurisprudence on after-discovered evidence
ll. Ana|ysis
[J-42_2018] - 16
A.
The law on after-discovered evidence in Pennsylvania stretches back nearly two
centuries As early as 1819, in Moore v. Phi/ade/phia Bank, 5 Serg & Rawle 41l 42 (Pa.
1819), this Court proclaimed that, to be entitled to a new trial based on after-discovered
evidence the proponent of the new evidence must demonstrate “1st, that the evidence
has come to his knowledge since the tria|; 2d that it was not owing to want of due
diligence that it did not come sooner; and 3d that it would probably produce a different
verdict, if a new trial were granted.” Over time these core principles _ albeit with some
slight modifications and additions _ became ingrained in Pennsylvania law.
By the mid-twentieth century, we recognized that, to justify the grant of a new trial
on the basis of after-discovered evidence “the evidence must have been discovered after
the trial and must be such that it could not have been obtained at the trial by reasonable
diligence must not be cumulative or merely impeach credibility and must be such as
would likely compel a different result[.]" Commonwealth v. Schuck, 164 A.2d 13, 17 (Pa.
1960), cert denied 368 U.S. 884 (1961). l\/lore recently, we have viewed this analysis in
criminal cases as comprising four distinct requirements each of which, if unproven by the
petitioner, is fatal to the request for a new trial. As stated this four-part test requires the
petitioner to demonstrate the new 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 Pagan,
950 A.2d at 292. The test applies with full force to claims arising under Section
9543(a)(2)(vi) of the PCRA. Burton, 158 A.3d at 629. |n addition we have held the
proposed new evidence must be producible and admissible Commonwealth v. Scott,
470 A.2d 91, 95 (Pa. 1983).
[J-42-2018] - 17
Though the after-discovered evidence test is well settled this Court has never
defined precisely what constitutes “merely corroborative or cumulative evidence.” We
begin by noting there is a subtle difference between evidence that is “corroborative” and
evidence that is “cumulative" ln the most general sense corroborative evidence is
“[e]vidence that differs from but strengthens or confirms what other evidence shows,”
while cumulative evidence is “[a]dditional evidence that supports a fact established by the
existing evidence.” BLAck's LAw DicTioNARY 674, 675 (10th ed 2014). As discussed
infra, however, whether evidence is labeled “corroborative” or “cumulative” is not critical
to the after-discovered analysis; instead what matters is whether the evidence merely
corroborates or is cumulative of other evidence presented at trial. Thus, while much of
the discussion below centers on cumulative evidence the rule we ultimately announce
for determining whether this prong of the after-discovered evidence test has been met
applies equally to evidence that is corroborative cumulative or both.
Our most expansive pronouncement on the subject of merely corroborative or
cumulative evidence appears in one of the earliest cases in which we applied the after-
discovered evidence test to a criminal matter, Commonwea/th v. F/anagan, 7 Watts &
Serg. 415 (Pa. 1844). ln F/anagan, the Court expounded on the law set forth two and a
half decades earlier in Moore articulating for the first time an additional requirement that
after-discovered evidence _ in order to support a request for relief _ must be more than
“merely” cumulative of other evidence presented at trial. /d. at 423. To that end we
stated: “So cumulative evidence by which is meant additional evidence to support the
same point, or where it is of the same character as evidence already produced is not
sufficient to induce the court to grant a new trial,” /d. This definition of cumulative
evidence was derived from Peop/e ex re/. Oe/ricks v. Superior Court of City of New York,
10 Wend. 285 (N.Y. 1833)1
[J-42-2018] - 18
[W]hat is cumulative testimony’? The definition of the word cumulative is
‘that augments by addition, that is added to something else; in /aw, that
augments as evidence facts or arguments of the same kind.’ Webster’s
Dict’y. lt is derived from the [L]atin cumu/o, to heap up, or cumu/us, a heap
According to my understanding of cumulative evidence it means additional
evidence to support the same pointl and which is of the same character
with evidence already produced
/d. at 294 (emphasis in original). Aside from a passing remark in Flanagan regarding this
“same point, same character” framework, this Court has done little more to explicate the
meaning of the term.
Turning to other jurisdictions for guidance it is apparent that, like New York, many
states have adopted some version of the “same point, same character” analysis for
determining whether newly discovered evidence is merely cumulative and thus not
sufficient to support a new trial. See, e.g., State v. Bader, 808 A.2d 12, 30 (N.H. 2002)
(“Cumulative evidence is defined as additional evidence of the same kind to the same
point.”) (quotation and citation omitted); Robinson v. State, 64 P.3d 743, 756 (Wyo. 2003)
(“Evidence is not cumulative if it is of a different character and of a separate and distinct
fact.”) (citation omitted); State v. O’Donne//, 433 S.E.2d 566, 570 (W. Va. 1993)
(“[C]umulative evidence is evidence offered to prove what has already been established
by other evidence . . . [|t] is additional evidence of the same kind to the same point.”)
(quotation and citations omitted). Our analysis of these concepts is enhanced by
consideration of case law from the Supreme Court of Georgia:
[T]he true test as to whether evidence is cumulative depends not only on
whether it tends to establish the same fact, but it may depend on whether
the new evidence is of the same or different grade lt is only when newly
discovered evidence either relates to a particular material issue concerning
which no witness has previously testified or is of a higher and different
grade from that previously had on the same material point, that it will
ordinarily be taken outside the definition of cumulative evidence
Brown v. State, 450 S.E.2d 821, 824 (Ga. 1994) (citation omitted).
[J-42-2018] - 19
We view the definitions of cumulative evidence employed by our sister states to be
consistent with our decision in F/anagan, and we reaffirm that after-discovered evidence
is merely corroborative or cumulative _ and thus not sufficient to support the grant of a
new trial _ if it is of the same character and to the same material point as evidence
already adduced at trial. lt is clear the terms “of the same character” and “to the same
point” refer to distinct qualities of evidence; to be “merely corroborative or cumulative,”
newly discovered evidence must tend to prove material facts that were already in
evidence at trial, and also be of the same grade or character of evidence as that produced
at the trial to prove those material facts See Brown, 450 S.E.2d at 824. lf the new
evidence is of a different and “higher” grade or character, though upon the same point, or
of the same grade or character on a different point, it is not “merely” corroborative or
cumulative and may support the grant of a new trial based on after-discovered evidence
This definition of merely corroborative or cumulative evidence accounts for the
reality that not all evidence relating to the same material point is equal in quality, or
“grade.” See generally Commonwealth v. Dennis, 950 A.2d 945, 963 n.14 (Pa. 2008)
(“Where the defense is one of mistaken identity, and the only alibi witness [the defendant]
presents is his father, it seems plain that the addition of an unrelated alibi witness whose
testimony corroborates other testimony tending to exculpate [the defendant] is not ‘merely
cumulative[.]”’); McCracken, 659 A.2d at 545 (conc|uding recantation testimony was “not
merely cumulative or corroborative given the tenuous nature of the circumstantial
evidence connecting [the defendant] to the crime[.]”). lt also fits squarely in line with those
decisions where we have applied the after-discovered evidence test and determined the
proposed new evidence was not merely corroborative or cumulative
[J-42-201 81 _ 20
ln Commonwealth v. Cooney, 282 A.2d 29 (Pa. 1971), for example we concluded
the PCRA court abused its discretion in denying the petitioner’s motion for a new trial on
the basis of after-discovered evidence _ namely, evidence of a bullet lodged in the
petitioner’s head that was not discovered until after trial. The new evidence was relevant
to the petitioner’s defense against murder charges, in that he had argued at trial that he
suffered a gunshot wound to the head while attempting to take the gun away from the
victim; it was during this struggle he alleged that the gun went off accidentally and killed
the victim. ld. at 30. Despite trial testimony from the Commonwealth’s medical expert
confirming the petitioner suffered a wound to his head that was consistent with a gunshot,
this Court concluded the later, conclusive discovery of a bullet in the petitioner’s head
warranted a new trial. ld. Although we recognized the existence of the bullet “serve[d] to
support and confirm the testimony” of the petitioner and the medical expert, we
nevertheless held the strength of the new evidence which “eliminate[d] all . . . other
possibilities as the causative factor of the head wound,” made the petitioner’s theory of
the crime “much more believab|e” ld. at 31. ln other words, the discovery of the bullet
in petitioner’s head was of a “higher grade” than the other evidence which suggested
petitioner had been shot, and therefore it did not “serve[ ] merely to corroborate the trial
testimony,” as the PCRA court concluded ld. at 30. Consequently, we reversed the
order denying the petitioner’s motion for a new trial.
The result in Commonwealth v. \/a/derrama, 388 A.2d 1042 (Pa. 1978), was
similar The defendant in that case facing murder and related charges, presented an
alibi defense at trial, contending he was in Puerto Rico at the time of the crimes ld. at
1044. To prove it, he presented multiple witnesses to establish his presence there as
well as municipal records establishing his employment by the town government /d. ln
rebuttal, the Commonwealth presented Social Security Administration records
[J-42-2018] - 21
demonstrating the defendant had not earned any wages during the time the crimes
occurred ld. Following his conviction, the defendant obtained new evidence from the
Puerto Rican government showing his wages had been reported without a social security
number and thus, were held in suspense by the Social Security Administration until a
number could be obtained and the wages credited to his account ld. at 1044-45. The
trial court denied post-verdict relief, and this Court reversed concluding, inter alia, that
the new evidence was not merely corroborative or cumulative and instead supported the
grant of a new trial. We explained the new evidence was “significant beyond
corroboration of [the defendant]’s alibi defense as it may negate the Commonwealth’s
evidence on the missing social security numbers.” ld. at 1045.
Final|y, in Commonwealth v. Bu/ted, 279 A.2d 158 (Pa. 1971), the prosecution
argued to the jury that the defense had failed to produce a “phantom” witness with whom
the victim _ the defendant’s wife _ was allegedly having an affair before her death. ld.
at 160-61. After a jury convicted the defendant of first-degree murder, it was discovered
that the “phantom” witness was in fact a real person, Francisco Matos, and that he had
fled the city after the victim’s death. /d. at 161. ln a subsequent deposition taken jointly
by the prosecution and defense l\/|atos corroborated the defendants trial testimony
insofar as he admitted having an intimate relationship with the victim and engaging in a
physical confrontation with the defendant over this relationship shortly before the victim’s
death. ld. On appeal, this Court reversed the trial court’s order denying a motion for a
new trial based on this evidence |n doing sol the Court rejected the Commonwealth’s
argument that l\/latos’s testimony was “merely corroborative" of the defendants testimony
ld. lnstead, noting that the “emphasis which the district attorney placed on the supposed
‘phantom’ nature’7 of l\/|atos was “indicative of the crucial importance . . . his supposed
nonexistence played in the case[,]” this Court determined l\/latos’s testimony may have
[J-42-201 81 - 22
altered the jury’s verdict with regard to the degree of homicide ld. at 161-62. Under
those circumstances the Court concluded it “would be monstrously unjust to deny [the
defendant] a second trial at which the jury will have an opportunity to weigh the testimony
of l\/latos before reaching their verdict.” ld. at 162.
Col|ectively, these cases confirm this Court has never foreclosed _ and has
actually embraced _ the notion that new evidence tending to prove a material fact that
was in evidence at trial is not always “merely” corroborative or cumulative so long as it is
of a higher and different grade or character l\/loreover, our cases support a salutary goal
of the after-discovered evidence rule: to limit continued litigation without being so rigid as
to shut out newly discovered evidence from a credible source which may lead to a true
and properjudgment See, e.g., Spencer v. State, 153 S.W. 858, 860 (Tex. Crim. App
1913) (“[T]he reason for the rule forbidding a new trial for the purpose of admitting
cumulative testimony is that public policy . . . seeks to limit continued litigation, [but it]
should never be applied where the newly discovered testimony may be of that cogency
and force where it might probably show that an innocent man may probably be caused to
suffer for a crime he did not commit."). Accordingly, we now clarify that evidence which
is corroborative or cumulative but not “merely” so _ that isl the new evidence is of a
higher grade or character than what was previously presented on a material issue _ may
properly be used to support the grant of a new trial.12
12 This rule aligns with those imposed by other states, and is consistent with “a noticeable
trend in the decisions in some jurisdictions which have applied the strict rule against
[corroborative or] cumulative evidence to place a greaterl if not complete reliance upon
the principle that the controlling factor is the probable result or effect of the new evidence
upon another tria|.” T.C.W., New/y Discovered Evidence, Corroborating Testimony Given
Only By a Pan‘y or Other /nterested l/l/itness, as Ground for New Trial, 158 A.L.R. 1253
(2011).
We recognize learned Pennsylvania jurists have similarly criticized the rote recitation and
application of the four-pronged after-discovered evidence test as tending to supplant the
[J-42-2018] - 23
B.
We turn now to application of the after-discovered evidence test to the facts of this
case Appellant claims the Superior Court erred when it held Tyson’s new affidavit and
testimony was “mere|y” corroborative or cumulative of evidence presented at trial, such
that it could not support the PCRA courts grant of a new trial based on after-discovered
evidence The Commonwealth does not contest that Tyson’s new affidavit and testimony
satisfied the first and third prongs of the after-discovered evidence test -- respectively,
whether the evidence could have been obtained prior to the conclusion of trial and
whether it would be used solely to impeach the credibility of a witness lnstead, the
Commonwealth claims Tyson’s new evidence is merely corroborative or cumulative of
other evidence presented at trial, and also that Tyson was simply not a credible witness
who can provide evidence of a higher grade than other evidence on the identity of the
shooter
lt is clear Tyson’s new testimony _ that Espada confessed to killing Price _ tends
to prove a material fact that was already in evidence at the trial. Deleon Dotson testified
critical inquiry in determining if a new trial is warranted -- i.e., whether the new evidence
is of such probative value that it would have likely changed the outcome of the trial if it
had been introduced See, e.g., Commonwealth v. Perrin, 59 A.3d 663, 669 (Pa. Super.
2013)l vacated 103 A.3d 1224 (Pa. 2014) (Wecht, J., concurring) (“ln practice the third
and fourth prescribed inquires tend to collapse into each other The fourth question
regarding the likelihood of a different result, tends to dominate the entire inquiry l will go
one step further and suggest that the second factor, concerning whether the after-
discovered evidence in question would be merely cumulative similarly is subsumed by
the question of prejudice"); Commonwealth v. Choice, 830 A.2d 1005, 1010 (Pa. Super.
2003) (Klein, J., dissenting) (“l believe that what we have called a four-prong test is really
only a three[-]prong [ ] test Prong # 3, the ‘on|y 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.”). The definition of “merely corroborative or cumulative" evidence
we announce today favorably advances the inquiry into whether the evidence would likely
result in a different verdictl which we view as the lodestar of the after-discovered evidence
analysis
[J-42-2018] - 24
Espada told him he “walked up beside [appe|lant], walked around his left side and . . .
just pointed the gun and shot” Price. N.T. 8/8/12, 134-35. l\/loreover, Detective Neal
testified he interviewed Lisa Small, who stated she learned from Jasmine Spriggs that
Espada told her “he didn’t know what to do and he didn’t mean to shoot [Price.]” ld. at
11. |n light of this evidence Tyson’s assertion that Espada confessed to the murder is
not new; the jury heard it all before from others
Appellant does not dispute this point. See Brief for Appellant at 24 (“Here the type
of evidence is the same; a confession by Pedro Espada.”). lnstead, he contends that,
notwithstanding the evidence of Espada’s other confessions “Tyson’s testimony is
different” because it “significantly supports the defense theory of the case much more so
than the evidence actually presented at trial.” ld. at 17. With regard to Espada’s
confession to Dotson, appellant highlights that Dotson testified he did not actually believe
Espada’s confession ld. at 25, citing N.T. 8/8/12l 136-37. Appellant also notes that
confession lacked factual support as the medical examiner testified Price died as a result
of a contact gunshot wound and Espada told Dotson he was three to five feet away when
he shot Price. /d., citing N.T. 8/8/12, 134-35. As for the confession testified to by
Detective Neal, appellant submits it was “hearsay within hearsay" and, as such, “cannot
hold much weight.” ld. at 26.
|n stark contrast to these confessions containing “very limited exculpatory value,”
appellant posits, Tyson’s new testimony “holds significant weight” because she testified
to details surrounding Espada’s confession to her, including his physical and emotional
states ld. at 21, 26-27. Appellant also points out that Espada’s confession to Tyson
included his motive for shooting Price. /d. at 27. Appellant further argues this confession
to Tyson was more believable because it was made to the mother of Espada’s children
[J-42-2018] - 25
ld. According to appellant, “[t]his confession in its factual details is extremely
exculpatory[.]” /d. at 28.
We find facial appeal in appellant’s argument ln many ways, it invokes the
analysis we clarified above for determining whether new evidence is “merely”
corroborative or cumulative Through his assertions that Tyson’s testimony is “more
exculpatory” and “more detailed,” appellant essentially argues Tyson’s testimony
recounting Espada’s confession is of a higher and different grade than the confessions
testified to by Dotson and Detective Neal. Further, by stressing that Tyson’s relationship
to Espada makes her testimony “more believable,” appellant implies that Tyson herself is
a witness of a higher and different quality than the other witnesses Ordinarily, appellant’s
position would be compelling, but the nature of Tyson’s testimony complicates the matter
_ As the PCRA court appreciated this Court has repeatedly “acknow|edged the
limitations inherent in recantation testimony, which has been characterized as ‘extremely
unreliable”’ PCRA Ct. Op. at 14l citing Williams, 732 A.2d at 1180 (internal citation
omitted). ln fact we have remarked that “[t]here is no less reliable form of proof,
especially where it involves an admission of perjury.” Commonwealth v. Moste//er, 284
A.2d 786, 788 (Pa. 1971) (citations omitted). For that reason we have emphasized that,
when addressing an after-discovered evidence claim premised on recantation testimony,
“the PCRA court must in the first instance assess the credibility and significance of the
recantation in light of the evidence as a who|e." Commonwealth v. D’Amato, 856 A.2d
806, 825 (Pa. 2004). “Unless the [FCRA] court is satisfied that the recantation is true it
should deny a new trial.” Commonwealth v. Henry, 706 A.2d 313, 321 (Pa. 1997)
(citations omitted).
With these well-established principles in mind we find it necessary to answer two
preliminary questions central to the after-discovered evidence analysis in this case First,
[J-42-2018] - 26
do Tyson’s affidavit and new testimony amount to a recantation? And, if so, then second
did the PCRA court believe that recantation to be true?
The answer to the first question is clear Although Tyson’s new statements did not
directly conflict with her trial testimony _ neither party asked Tyson at trial if she ever
discussed the murder with Espada - it is undoubtedly a recantation of her March 15,
2011 statement to police ln that statement which the Commonwealth introduced at the
evidentiary hearing, Tyson stated: “| spoke to Pedro [Espada] but didn’t talk about [the
murder].” N.T. 5/12/15, 63. She directly contradicted this statement in her 2015 affidavit
and testimony by asserting that, when she spoke with Espada just hours after the murder,
he confessed to her he committed the crime l\/loreover, in her 2015 affidavit Tyson
acknowledged she “withhe|d certain personal knowledge from the Harrisburg Po|ice
Department when questioned . . . [and] continued to withhold that personal knowledge
while testifying at [appe|lant’s] jury trial.” Affidavit of Fact, R.R. 270(a). Appellant
concedes Tyson’s new testimony is a “very minor recantation," Brief for Appellant at 15,
but his attempt to minimize it fails See BLAck’s LAw chTioNARv 1459 (10th ed. 2014)
(defining “recant’ as “[t]o withdraw or renounce (prior statements or testimony) formally
or publicly”) (emphasis added).
The second question _ did the PCRA court believe Tyson’s recantation _ is not
so easily answered The PCRA court opined that, in light of Tyson’s new testimonyl “a
different outcome is probable.” PCRA Ct. Op. at 16. This remark, coupled with the PCRA
courts decision to grant a new trial, might imply the PCRA court determined Tyson’s new
testimony about a different shooter was credible and true. However, the Superior Court
observed the PCRA court “did not even make an assessment of [Tyson’s] credibility[.]”
Superior Ct. Op. at 15, ln fact the PCRA court stated: “|f credited by a jury, Ms. Tyson’s
statement and testimony regarding Mr. Espada’s admission to her would likely result in a
[J-42-2018] - 27
different verdict.” PCRA Ct. Op. at 16 (emphasis added). Even appellant admits the
PCRA court “did not state whether [it] found [Tyson] credible” and it “seem[s] as though
the PCRA court passed the credibility determination onto the jury instead of making the
requisite finding [it]self.” Brief for Appellant at 22-23. Appellant further notes the Superior
Court “could have remanded the case so that the trial court could provide [its] position on
the credibility of the witness.” /d. at 22.
Where appropriate we have remanded matters involving after-discovered
evidence claims and specifically directed the trial or PCRA court to make credibility
determinations on recantation testimony For example in l/Vi//iams, the PCRA court failed
to make an independent determination as to the credibility of the recanting witness This
Court noted the PCRA court as fact-finder “is in a superior position to make the initial
assessment of the importance of [the recantation] testimony to the outcome of the case,”
and remanded with a direction for the PCRA court to “render its own independent findings
of fact and conclusions of law concerning [the recanting person’s] credibility and the
impact if any, upon the truth-determining process which can be discerned from such
testimony” 732 A.2d at 1181. Similarly, in D’Amato, the PCRA court failed to mention
let alone pass upon the credibility of the recantation testimony in its opinion After holding
the PCRA court had defaulted on its duty to assess the credibility of the recantation and
its significance in light of the trial record this Court remanded the matter for the limited
purpose of allowing the PCRA court to make that determination 856 A.2d at 825-26.
We conclude the same result is necessary here Under the circumstances we
decline to assume the PCRA court found Tyson’s testimony credible based on the simple
fact that it granted relief, and the course charted in Williams and D’Amato _ a remand
[J-42-201 81 - 28
to the PCRA court for the relevant credibility determination _ provides an alternative to
such an assumption13
||l. Conclusion
Accordingly, we vacate the Superior Court’s order and remand to the PCRA court
for limited further proceedings consistent with this opinion.14
Jurisdiction relinquished
Chief Justice Say|or, and Justices Baer, Todd, Donohue, Wecht and l\/lundy join
the opinion
13 We recognize that, in cases such as Williams and D’Amatol we specifically remanded
so the lower court could make credibility determinations on the recantation testimony “with
an eye to the relevant prejudice standard,” Commonwealth v. Johnson, 966 A.2d 523,
541 (Pa. 2009), i.e., with an eye to the fourth prong of the after-discovered evidence test
Nevertheless, we find such credibility determinations to be equally important to the
second prong of the test where the proposed after-discovered evidence consists of
recantation evidence that may be of a different grade or character than evidence
presented at trial. lf the court determines the recantation testimony is incredible or untrue
it necessarily cannot be of such a higher and different grade or character as to remove it
from the category of “merely corroborative or cumulative” evidence
1‘1 The Superior Court was ostensibly of the opinion that the PCRA court independently
erred in awarding a new trial because Tyson’s testimony concerning Espada’s confession
would not be admissible at a new trial. See Superior Ct. Op. at 14 (recognizing hearsay
declarations against penal interest are inadmissible unless there are corroborating
circumstances that clearly indicate the trustworthiness of the statement). There is no
indication in the PCRA courts opinion that it considered as part of its after-discovered
evidence analysis the requirement that “the proposed new evidence must be producible
and admissible.” Commonwealth v. Smith, 540 A.2d 246, 263 (Pa. 1988). ln the absence
of the necessary credibility determination however, we decline at this juncture to
conclude a new trial was improper on this ground Obviously, it is incumbent upon the
PCRA court to determine on remand whether Tyson’s new testimony would be admissible
at a new trial pursuant to Pa.R.E. 804(b)(3), or on some other basis
[J-42-2018] - 29