Com. v. Walls, D.

J-S40024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DUSTIN ALAN WALLS,
Appellant No. 2125 MDA 2013
Appeal from the Judgment of Sentence May 15, 2013
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000361-2011
BEFORE: BENDER, P.J.E., BOWES, and PANELLA, JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 09, 2014
Dustin Alan Walls appeals from the judgment of sentence of two years
and three months to fifteen years incarceration imposed by the trial court
after a jury found him guilty of possession with intent to deliver (“PWID”)
oxycodone. After careful review, we affirm.
Pennsylvania State Trooper John Brumbaugh and the Franklin County
Drug Task Force utilized a confidential informant (“CI”) to purchase
oxycodone on March 11, 2010. The CI purchased oxycodone in the parking
lot of Kentucky Fried Chicken and handed the drugs to Trooper Brumbaugh.
The Commonwealth charged Appellant with PWID with respect to this
incident on January 18, 2011. Appellant filed a motion in limine seeking to
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preclude any statements by the CI unless the CI testified, and argued for
disclosure of the CI’s identity.1 The court denied the motion. Nonetheless,
the identity of the CI was revealed ten days before trial as Dennis Rexrode.
Rexrode did not testify at trial. However, Trooper Brumbaugh testified that
Rexrode purchased drugs from Appellant on the date in question. Detective
Darren North also testified that Rexrode was the CI involved. The court
denied Appellant’s request for a missing witness instruction relative to
Rexrode, and directed Appellant not to argue that position in his closing
summation. The jury initially asked one question of the court, which was
how the Commonwealth identified Appellant, before it found Appellant guilty
of PWID. Thereafter, the trial court sentenced Appellant to two years and
three months to fifteen years imprisonment.
Appellant filed a timely post-sentence motion alleging the existence of
after-discovered evidence. Specifically, Appellant learned that Rexrode
denied involvement in the drug transaction. The court conducted a hearing
on June 27, 2013, and scheduled an additional hearing. However, the
Commonwealth continued the matter. Appellant filed a motion to extend the
time to decide his post-sentence motion, see Pa.R.Crim.P. 720(B)(3)(b), on
July 25, 2013. The court conducted the remainder of the post-sentence
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1
Appellant also filed a suppression motion, which is irrelevant for purposes
of this appeal.
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hearing on October 10, 2013, and indicated that it had granted Appellant’s
extension.
Rexrode testified that he was not involved in any drug transactions
with Appellant on behalf of the Commonwealth. He indicated that he had
aided the Commonwealth with four specific targets, but was not involved
with the investigation pertaining to Appellant. The Commonwealth
countered with testimony from both Trooper Brumbaugh and
Detective North. Detective North related that Appellant informed him that
Trooper Brumbaugh confused the informant involved and that it was not
Rexrode, but a person named Tom Land. According to Detective North,
Appellant did not deny that he was involved in the drug transaction.
Ultimately, Appellant’s motion was denied. This timely appeal ensued.
The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant complied,
and the trial court authored its Rule 1925(a) opinion. The matter is now
ready for our review. Appellant’s sole issue on appeal is “[w]hether the trial
court erred in denying Appellant[’]s [p]ost-[s]entence [m]otion for a new
trial based on after discovered evidence in the form of the confidential
informant denying having ever purchased narcotics from Appellant?”
Appellant’s brief at 6.
We review a trial court’s decision to deny or grant a motion for new
trial on the basis of after-discovered evidence for an abuse of discretion.
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Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013). Our Supreme
Court has consistently opined that a motion for a new trial should be granted
when the after-discovered evidence is producible and admissible and:
(1) could not have been obtained prior to the end of trial with
the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative evidence; (3) is not merely
impeachment evidence; and (4) is of such a nature that its use
will likely result in a different verdict on retrial.
Id.2 A defendant must establish by a preponderance of the evidence that
each of these prongs has been met to be entitled to a new trial.
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.Super. 2010).
Appellant argues that Rexrode’s testimony meets all four prongs of the
after-discovered evidence test. He contends that the trial court agreed that
he had satisfied the first two prongs by showing that the evidence was
discovered after trial and could not have been discovered by the exercise of
due diligence and the evidence was not cumulative. However, Appellant
submits that the court erred in finding that the evidence would have been
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2
This test has received criticism with respect to the third element. See
Commonwealth v. Choice, 830 A.2d 1005 (Pa.Super. 2003) (Klein, J.
dissenting); see also Commonwealth v. Perrin, 59 A.3d 663 (Pa.Super.
2013) (Wecht, J. concurring) (citing Choice, supra); Commonwealth v.
Foreman, 55 A.3d 532 (Pa.Super. 2012) (Wecht, J. concurring) (citing
Choice, supra). In this respect, Judge Klein and Judge Wecht astutely
recognized that, in certain cases, impeachment evidence could reveal that
the outcome of the trial would be different. We briefly discuss the history of
this element in the body of this memorandum.
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used solely to impeach Trooper Brumbaugh and was not likely to result in a
different verdict.
Appellant acknowledges that Rexrode’s testimony would impeach that
of Trooper Brumbaugh. Nonetheless, he points out that this testimony also
would be factual testimony that Appellant did not sell drugs to Rexrode, i.e.,
it is both impeachment evidence and exculpatory factual evidence.
According to Appellant, Rexrode’s testimony would “factually account for the
whereabouts of the informant who the Commonwealth specifically alleged to
the jury to have been present in a vehicle at a specific date and time
conducting a purchase of narcotics[.]” Appellant’s brief at 12. He adds that
Rexrode’s testimony also calls into question the chain of custody of the
drugs involved since Trooper Brumbaugh testified that Rexrode provided him
with the drugs sold to him by Appellant. With respect to the prejudice
aspect of the after-discovered evidence test, Appellant asserts that the
evidence “speaks directly to [his] innocence.” Id. at 14. Appellant contends
that it is likely that the jury would have reached a different outcome since
the CI allegedly involved would have testified that he did not take part in the
drug deal.
The Commonwealth has elected not to file a brief, relying solely on the
trial court opinion in this matter. The trial court set forth that Appellant did
attempt to contact Rexrode by both phone and letter via the phone numbers
and address provided by the Commonwealth prior to trial, and was
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unsuccessful. The court found that Appellant exercised reasonable diligence
in attempting to locate and discuss the matter with Rexrode.
In addition, the court concluded that Appellant met the second aspect
of the after-discovered evidence test. In this regard, the court reasoned
that Rexrode’s testimony was not cumulative of Appellant’s testimony since
Appellant did not testify regarding the CI used in the deal. Rather, Appellant
stated that he did not deliver the drugs and could not have done so because
he did not have a vehicle at that time. Since Rexrode’s testimony was that
he was not the CI involved in this matter, and Appellant’s testimony did not
encompass such a claim, the evidence was not cumulative.
As noted, however, the trial court determined that Appellant could not
meet the final two prongs of the after-discovered evidence paradigm. The
court opined that Rexrode’s testimony would have been used solely to
impeach Trooper Brumbaugh. Finally, the court concluded that Appellant
could not demonstrate that the outcome of the trial would have differed on
retrial had Rexrode testified. The court reasoned that Rexrode’s testimony
only established his whereabouts, not those of Appellant. In its view, the
evidence was not exculpatory. It added that Appellant’s own admission to
Detective North was that Trooper Brumbaugh incorrectly identified the CI,
not that he did not sell drugs on the date in question.
Here, Appellant’s attempts to contact Rexrode prior to trial were
unsuccessful. Following trial, Appellant, according to his post-sentence
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motion, encountered Rexrode at a local gas station. Rexrode affirmed that
he did not purchase drugs from Appellant and that same day reiterated
that claim to counsel for Appellant. As mentioned, the trial court determined
that Appellant could not have learned the nature of Rexrode’s testimony
until after trial and that he exercised diligence in attempting to locate and
contact Rexrode before trial. We decline to disturb this ruling.
In addition, we agree with the trial court’s assessment that Rexrode’s
testimony was not merely cumulative or corroborative of evidence admitted
at trial. Rexrode would have testified that he did not purchase drugs from
Appellant on the date in question. Although Appellant testified that he did
not sell drugs on the relevant date, Rexrode’s proffered testimony differed
from the testimony of Trooper Brumbaugh. Certainly, Rexrode’s testimony
would have impeached Trooper Brumbaugh; however, we disagree that
Rexrode’s testimony would have been used solely to impeach the trooper.
Evidence that Rexrode did not purchase drugs from Appellant would be
exculpatory in nature based on the Commonwealth’s evidence admitted at
trial. In the present case, the Commonwealth alleged and introduced
evidence that Appellant sold oxycodone, in the form of Percocet pills, to
Rexrode. Rexrode’s testimony that he did not purchase the pills is
exculpatory in this respect. This, of course, does not mean that Appellant
did not sell drugs to another individual; nevertheless, the Commonwealth’s
trial evidence was premised on a sale to Rexrode. Hence, we disagree with
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the trial court’s conclusion that Rexrode’s testimony was merely
impeachment evidence. Impeachment evidence that is after-discovered may
compel a different verdict where it is material and exculpatory.
Commonwealth v. Mosteller, 284 A.2d 786 (Pa. 1971); Commonwealth
v. Krick, 67 A.2d 746 (Pa.Super. 1949). Moreover, simply because
evidence can be used to impeach another witness does not mean that its
sole use is for impeachment purposes. Indeed, it is clear that the original
purpose of the impeachment prong of the test has come unhinged from its
original intent and blurred the law in this area.
In Moore v. Philadelphia Bank, 5 Serg. & Rawle 41 (Pa. 1819), the
Pennsylvania Supreme Court set forth that, to be entitled to a new trial
based on after-discovered evidence: “1st, that the evidence has come to his
knowledge since the trial; 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.” Later, and after citing to
Moore, the Pennsylvania Supreme Court expounded on the law regarding a
motion for a new trial based on after-discovered evidence in a criminal case
in Commonwealth v. Flanagan, 7 Watts & Serg. 415 (Pa. 1844). The
Flanagan Court opined,
a great deal of testimony has been given, which does not
establish independent facts, material to the issue; but its only
effect is to impeach the credit of some of the witnesses
examined on the former trial. But the rule of law is, that the
testimony must go to the merits of the case, and must not be
merely for the purpose of impeaching the testimony of the
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witnesses. For newly discovered evidence, discrediting witnesses
who testified on a former trial, a new trial is never granted.
Id. at 423. The case relied upon by the Flanagan Court for this proposition
was People ex rel. Oelricks v. Superior Court of City of New York, 10
Wend. 285 (1833).3 That decision delineated:
With respect to granting new trials on the ground of newly
discovered testimony, there are certain principles which must be
considered settled. 1. The testimony must have been discovered
since the former trial. 2. It must appear that the new testimony
could not have been obtained with reasonable diligence on the
former trial. 3. It must be material to the issue. 4. It must go to
the merits of the case, and not to impeach the character of a
former witness. 5. It must not be cumulative. 4 Johns. R. 425. 5
id. 248. It cannot be denied in this case that the testimony
offered was material to sustain the point of defence; and that it
is not liable to the objection that it goes to impeach the plaintiff's
witness. Russell says nothing about the character of the witness
Heckscher, but contradicts the fact sworn to by him.
Id. at 292 (italics in original). Certainly, factual testimony that contradicts
the testimony of another witness can be impeachment evidence, but it is not
evidence that impeaches the character of a witness. The earlier New York
case cited therein reasoned, “A new trial is not to be granted, merely on the
discovery of new evidence, which would impeach the character of a witness
at the trial. There would be no end of new trials on that ground.” Shumway
v. Fowler, 4 Johns. 425 (N.Y.Sup. 1809). Thus, the impeachment evidence
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3
The Flanagan Court entered an incorrect pin cite as it cited to 10 Wend.
492, rather than 292. The case cited has no bearing on after-discovered
evidence. However, the Court cited to the correct case in the next sentence
in discussing the cumulative evidence portion of the after-discovered
evidence test.
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referred to by the early courts was in reference to impeaching the character
of a witness or impeachment as to non-material facts. Where the evidence
contradicted factual testimony as to a material issue, it was not considered
as being used solely for impeachment purposes. See Oelricks, supra, cited
by Flanagan, supra. This nuance was accepted in Mosteller, supra, and
Krick, supra. The alleged after-discovered evidence in those matters
involved recantation from a victim. While such testimony would certainly
impeach the victim’s earlier testimony, it also was material factual testimony
that contradicted facts sworn by that person and was exculpatory in nature.
Hence, the original import of the impeachment prong of the after-
discovered evidence test applied to evidence that impeached the character
of a witness, or was impeachment that was immaterial to the merits of the
case, not evidence that could be exculpatory. But see Padillas, supra at
367 (citing to Commonwealth v. Pagan, 950 A.2d 270 (Pa. 2008), which
did not rely on the impeachment aspect of the after-discovered evidence
test, and opining that an admission by the brother of the defendant to
having committed the crime would be used solely for impeachment
purposes); Commonwealth v. Kostan, 37 A.2d 606 (Pa. 1944).
Setting aside whether this evidence was not solely for impeachment,
we agree that Appellant is not entitled to relief because Rexrode’s testimony
would not likely result in a different verdict upon re-trial. Even assuming
arguendo that Rexrode was not the CI involved, Appellant acknowledged to
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Detective North after his trial that he sold the drugs on the date and place in
question to a different CI. Such an admission negates the exculpatory
aspect of Rexrode’s testimony. As the Flanagan Court reasoned over a
century and a half ago, “[i]f, with the newly discovered evidence before
them, a jury ought to come to the same conclusion as the former jury, it
would be worse than useless to grant a new trial.” Id. at 424.
Judgment of sentence affirmed.
Judge Panella Concurs in the Result.
P.J.E. Bender files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2014
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