Commonwealth v. Fiore

STEVENS, J.,

Dissenting.

¶ 1 I respectfully dissent from the Majority’s decision to reverse Appellant’s judgment of sentence and grant him a new trial based on after-discovered evidence.

¶ 2 As indicated by the Majority, “[w]here the credibility determination of the post-conviction court is supported by the record, the reviewing court is to defer to that determination.” Commonwealth v. Whitney, 550 Pa. 618, 630, 708 A.2d 471, 476 (1998). In the present case, Nikolai Zdrale acknowledged in his deposition testimony, which was self-serving, See, e.g., N.T. Deposition dated 10/16/98 at 9-10, and wrought with inconsistencies, his failing health and impaired memory and recollection of events. See, e.g., Id. at 24-27. Therefore, there exists support for the P-CRA court’s finding that this after-discovered evidence was of questionable credibility, contradicted abundant trial testimony and, thus, was not likely to have changed the outcome of the trial.⁶ Therefore, I would affirm on the basis of the PCRA court’s opinion.

6 . In addition, it is noted that the Majority cites no caselaw to support its determination that Mr. Zdrale’s ability to testify was after-discovered evidence that could not have been obtained prior to trial because of his assertion of his Fifth Amendment rights.