Com. v. Williams, R.

J-A12011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
REGGIE WILLIAMS,
Appellant No. 2443 EDA 2014
Appeal from the Judgment of Sentence Entered December 6, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000754-2009
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 30, 2016
Appellant, Reggie Williams, appeals from the judgment of sentence of
20 to 40 years’ incarceration, imposed after he was convicted of third-
degree murder. Appellant raises various issues for our review, including
challenges to the sufficiency and weight of the evidence, evidentiary rulings
by the trial court, and the discretionary aspects of his sentence. Appellant
also presents an after-discovered evidence claim, asking us to either grant
him a new trial or remand for an evidentiary hearing. After careful review,
we vacate Appellant’s judgment of sentence and remand for further
proceedings consistent with this memorandum.
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*
Former Justice specially assigned to the Superior Court.
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Appellant was initially tried before a jury in February of 2011, but a
mistrial was declared when the jury was unable to reach a verdict. Appellant
was retried in July of 2013. The trial court summarized the facts established
by the evidence presented at the second jury trial, as follows:
On March 29, 2008, sometime before 3:20 a.m., James
Anderson and his friend Harvey Tilghman went to Club 121, an
after-hours nightclub at 35th and Wharton Streets in South
Philadelphia. When Mr. Anderson arrived at the nightclub he was
met by Jana Perry, a female friend whom he had invited earlier.
A short time after Ms. Perry entered the nightclub, she joined a
line dance on the second floor of the establishment. While Ms.
Perry was dancing, Mr. Tilghman and Mr. Anderson stood on the
left side of the dance floor and watched the dancers. [Appellant]
and Bruce Lee were standing to the right of Mr. Tilghman and
Mr. Anderson. They were also watching the line dancers. Mr.
Tilghman spoke to the two men and introduced them to Mr.
Anderson. While Ms. Perry was dancing, Bruce Lee tugged at her
about three times. Toward the end of the dance, Bruce Lee
reached his hand out to Ms. Perry. Mr. Anderson also reached his
hand out to her. Ms. Perry chose Mr. Anderson.
Mr. Anderson was then knocked to the floor and rendered
unconscious, lying flat on his back. His face was swollen and he
was barely breathing. Mr. Tilghman kneeled to the floor and
attempted to aid his friend. As Mr. Tilghman attended to Mr.
Anderson, [Appellant] and Bruce Lee proceeded to stomp on Mr.
Anderson’s face at least twice. [Appellant] was 6’2” tall and
weighed 215 pounds. Bruce Lee was 6’5” tall and weighed 260
pounds. Both men were wearing Timberland boots. During the
assault on decedent, Mr. Tilghman and [Appellant] engaged in a
shoving match with each other. [Appellant] pushed Mr.
Tilghman, causing him to fall over Mr. Anderson who was still
lying on the floor. Mr. Tilghman rose and said: “I told you that
was my friend, what did you do?” [Appellant] yelled back: “He
disrespected me.” Within seconds, security responded and
separated the two men. The nightclub patrons scattered and
some left the establishment. [Appellant] fled the scene. Minutes
later, police arrived on the scene.
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James Anderson was pronounced dead at the Hospital of
the University of Pennsylvania on March 29, 2008 at about 4:10
a.m. At trial, Dr. Gary Collins, deputy chief medical examiner,
testified as the Commonwealth’s forensic pathology expert. After
conducting an autopsy of Mr. Anderson, Dr. Collins concluded to
a reasonable degree of medical certainty that the cause of death
was [a] blunt impact facial injury. Mr. Anderson sustained a
palpable fracture of his maxillary, right cheek bone, and nasal
bone. His right cheek, right lower and upper eyelids, and right
upper lip were bruised and swollen significantly. Dr. Collins
further observed a three-point pattern on [Mr. Anderson’s] right
cheek. Mr. Anderson also sustained injury to his lower lip, where
there were two lacerations: one across his lower lip and one that
separated his lower lip from the gum line. Dr. Collins further
observed blood stains inside Mr. Anderson’s oral and nasal
cavities and lungs. There were no other blunt or sharp injuries or
wounds to the remainder of his body.
Mr. Anderson bled profusely from his facial injuries. As a
result, he suffocated from blood that obstructed his airways. Dr.
Collins explained that an individual who is bleeding significantly
from the nose and mouth will suffocate if he is unable to clear
the accumulating blood from those cavities. The individual will
then suffer from a lack of oxygen to the lungs or the brain. In
addition to determining the cause of death, Dr. Collins concluded
to a reasonable degree of medical certainty that the manner of
death was homicide. The blunt impact facial injury and the lack
of injury to the remainder of the body was consistent with
testimony that Mr. Anderson’s face was moderately to
significantly impacted at least twice by a hard blunt object.
On March 29, 2008, at 3:20 a.m., Sergeant Michael Davis
responded to Club 121 after receiving a radio call about a fight.
Within seconds other officers including Police Officers Donofrio
and Corrado arrived on the scene and proceeded to the second
floor of the nightclub with Sergeant Davis. When they reached
the dance floor, Mr. Anderson was still lying on the floor. His face
was swollen and covered in blood and he was blowing bubbles of
blood from his nose and mouth. Sergeant Davis requested
expedited rescue and moved the crowd surrounding Mr.
Anderson while Officer Corrado administered CPR. Sergeant
Davis also asked responding officers to control the crowd and to
return as many patrons as possible to the nightclub. About 30 to
40 people remained inside the first floor of the nightclub.
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Unfortunately, Mr. Anderson stopped breathing while rescue was
on location.
At about 5:45 a.m., Crime Scene Officer William Trenwith
responded and conducted a walkthrough of the crime scene. He
collected a swab from the large pool of blood found on the
banquet room dance floor, one black baseball cap…, and one pair
of eyeglasses found on a nearby table. Officer Trenwith
submitted this evidence to the criminalistics laboratory. Officer
Trenwith also retrieved cups, glasses, and beer bottles and lifted
thirteen (13) fingerprints from these items. He submitted the
fingerprints to the Latent Fingerprint Unit.
Mr. Tilghman provided three statements regarding this
incident to police. On March 29, 2008, at 3:20 a.m., he gave his
first statement to Detective Kevin Conaway on the second floor
of the nightclub. He did not identify either perpetrator during this
interview. In his two-page statement, Mr. Tilghman stated that
he did not see anything because his back was turned during the
incident. Mr. Tilghman stated that after hearing the commotion,
he turned and saw a man lying on the floor with plywood on his
face. He further stated that he first recognized his friend by the
camouflage vest Mr. Anderson was wearing. After Mr. Anderson
was pronounced dead, Detective Conaway transported Mr.
Tilghman to the Homicide Unit where he provided a second
statement to Detectives Morton and Holmes. In this statement,
given on March 29, 2008, at 5:25 a.m., Mr. Tilghman gave an
account of the incident and identified a photograph of the
decedent. He did not identify the perpetrators, but stated that he
saw a brown boot stomping on Mr. Anderson.
After returning home, Mr. Tilghman could not sleep and
continued to think of his deceased friend. On March 31, 2008, at
8:55 a.m., Mr. Tilghman went to the Homicide Unit on his own
accord and provided a third statement to detectives. In his third
statement, Mr. Tilghman identified [Appellant] as “one of the
ones” that he saw stomping on James Anderson. Mr. Tilghman
identified [Appellant] from a photograph and told police that he
has known him for at least ten years. After identifying
[Appellant], Mr. Tilghman was shown a separate photographic
array. He identified Bruce Lee from the photographic array and
stated that Bruce Lee was with [Appellant] at the nightclub. He
described [Appellant] as about 6’2” or 6’3” tall and Bruce Lee as
about 6’3” tall. Mr. Tilghman told police that he only saw
[Appellant] stomping on Mr. Anderson, but he believed that
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more than one person stomped his friend. He also told police
that he saw [Appellant] stomp Mr. Anderson in the face at least
once, but that it could have been more than once. However, at
trial, Mr. Tilghman stated that he saw the victim being stomped
on at least twice.
At trial, Mr. Tilghman explained his initial failure to identify
[Appellant]. He stated that he felt pressured and was afraid of
the neighbors’ response to his cooperation with police. During
his initial interview by Detective Conaway, some of the people
inside the nightclub were from his neighborhood. [Appellant]
also lived in the neighborhood, about one block away from Mr.
Tilghman. At trial, Mr. Tilghman stated that he was “petrified” for
his family and for himself. He stated, “If you tell, basically,
everybody going to be against you and you can get killed that
way, easy.” Detective Conaway testified that Mr. Tilghman
appeared worried and upset during the first interview. About one
month after providing his third statement to police, Mr. Tilghman
moved out of state. He has not returned to Philadelphia except
to testify in this case on two separate occasions.
On March 29, 2008, at about 6:50 a.m., Detective George
Fetters interviewed Jana Perry. During the interview, Ms. Perry
provided a description of one perpetrator. She was also shown a
photographic array and asked if she recognized anyone from the
incident. Ms. Perry identified Bruce Lee and stated: “Yes, this
one. He's the one that was trying to talk with me and he's the
one that stomped Jimmy then he rolled out. I didn't see him
again after that.” At trial, Ms. Perry did not recall providing a
description to police. She also claimed to have used the “eeny
meeny miny moe” method when she identified Bruce Lee from
the photographic array. However, Detective Fetters testified that
Ms. Perry did not hesitate when she made her identification.
On March 29, 2008, at 9:50 a.m., Detective Thomas Gaul
interviewed Loretta Epps, who was a nightclub patron when this
incident occurred. During the interview, Ms. Epps described two
perpetrators: one man was taller than Detective Gaul, who was
6’3”, and the other man was even taller and wearing a white
baseball cap and red jacket. Ms. Epps was also shown a
photographic array and asked if she recognized anyone from the
incident. Ms. Epps identified Bruce Lee and stated: “This guy was
on the bar second floor. I can't say for sure he was one of the
guys who was stomping on the guy though.” At trial, Ms. Epps
further described the two perpetrators. The man stomping the
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victim's head and neck was about 6’2” or 6’3” tall and a fairly
thin person who weighed about 190 to 210 pounds. He was
wearing a red jacket, white baseball cap, and tan Timberland
boots. The second man may have been a little shorter and
slimmer than the first man.
Detective Verrechio was the assigned investigator in this
homicide case. Based on his investigation, he obtained arrest
warrants for [Appellant] and Bruce Lee on April 5, 2008. He also
obtained search warrants for [Appellant’s] residence at 2639
Oakford Street and Bruce Lee’s residence at 2645 Oakford Street
in Philadelphia. These properties are three doors apart from each
other and approximately nine (9) or ten (10) blocks away from
Club 121 at 35th and Wharton Streets. Detectives executed the
search warrant at [Appellant’s] residence, but nothing of
evidentiary value was recovered. [Appellant] was not present in
his home when police served the arrest warrant. Detective
Verrechio left his contact information and a copy of the search
warrant with a female relative. [Appellant] later contacted police
and told them that he would surrender on a date certain, but he
failed to do so.
On April 5, 2008 Detective Steven Mostovyk executed a
search warrant at 1248 South 27th Street in Philadelphia, the
address of Bruce Lee’s friend Latifa Sharee Allison. This
residence is just around the corner from 2639 Oakford Street.
During the execution of this search warrant, Detective Mostovyk
recovered two pairs of size 13 Timberland boots, one tan and
one light brown, and submitted them to the criminalistics
laboratory. Later that day, Bruce Lee was arrested at his
girlfriend’s house in Yeadon, Pennsylvania. At that time, Bruce
Lee was 6’5” tall and weighed 260 pounds.
In the early morning hours of April 9, 2008 police officers
returned to [Appellant’s] residence. Shortly after knocking and
announcing their presence, Sergeant Davis heard the door latch
turn. When Police Officer Thomas Dydra looked through the
living room window, he saw a dark shadow walk up to the door
and then back up against the wall. Officer Dydra communicated
his observation to Sergeant Davis, and the men waited a few
minutes. No one responded. Sergeant Davis then knocked
harder and announced louder. When no one responded Sergeant
Davis loudly requested a sledgehammer and a halligan bar to
assist in opening the door. At that time [Appellant] opened the
door and said: “I’m right here.” [Appellant] was arrested and
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transported to the Homicide Unit. After [Appellant’s] arrest
Detective John Cahill completed a biographical report of
[Appellant] on April 9, 2008. At that time, [Appellant] was 6’2”
tall and weighed 215 pounds. He was wearing a white thermal
long sleeve shirt, blue denim jeans, and tan Timberland boots
size 111/2. Detective Cahill confiscated those items from
[Appellant] and submitted them to the criminalistics laboratory.
In his report, Detective Cahill noted that [Appellant] named
Bruce Lee as an associate. After [Appellant] and Bruce Lee were
arrested, Detective Singleton obtained two buccal swabs from
each man and submitted them to the criminalistics laboratory.
At trial, Gamal Emira testified as a forensic science expert.
Mr. Emira analyzed the evidence submitted to the criminalistics
laboratory and prepared a report. The dark red stain swab
[taken from the pool of blood on the floor of the club] tested
positive for blood. Mr. Emira did not see any blood stains on
visual examination of the black baseball cap. He observed a
rootless human brown hair fragment. He also cut a piece of the
sweatband from the cap for identification purposes. He also
swabbed the recovered eyeglasses. His visual examination of the
tan size 111/2 Timberland boots recovered from [Appellant]
reaped one microscopic brown stain on the left side of the left
boot. He did not find any other stains. Mr. Emira testified that he
suspected that it was blood, but he did not conduct blood testing
because of the sample's small size. Instead, he swabbed the
stain and submitted it for DNA testing. Mr. Emira also observed
brown stains during his visual examination of the two pairs of
size 13 Timberland boots recovered from Bruce Lee. Mr.
Benjamin Levin, a DNA science expert, received and analyzed
the swabs Mr. Emira submitted to the DNA laboratory. Mr. Levin
concluded to a reasonable degree of scientific certainty that the
dark brown stain swab recovered from the banquet room dance
floor was from James Anderson. There were no DNA results from
[Appellant’s] left Timberland boot, the sweatband, the
eyeglasses, or Bruce Lee's right Timberland boot.
On February 22, 2012, Bruce Lee entered into a negotiated
guilty plea to third-degree murder, at CP-51-CR-0000746-2009.
On that same day, Bruce Lee was sentenced to an imprisonment
term of seven (7) to fourteen (14) years.
Trial Court Opinion (TCO), 4/30/15, at 2-9.
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Based on this evidence, the jury convicted Appellant of third-degree
murder. On December 6, 2013, Appellant was sentenced to a term of 20 to
40 years’ incarceration. On December 9, 2013, Appellant filed a post-
sentence motion (hereinafter, “December 9th motion”) asserting several
errors by the trial court, and also asking for additional time to file a
supplemental post-sentence motion within 30 days of receiving the trial
transcripts. On December 10, 2013, Appellant filed a second post-sentence
motion, entitled a “Motion for Reconsideration of Sentence,” (hereinafter,
“December 10th motion”) solely challenging the sentence the court had
imposed. On January 31, 2014, the court issued an order denying
Appellant’s December 10th motion. The order did not advise Appellant of the
time within which he could file an appeal from that order.
In regard to Appellant’s December 9th motion, the certified record
reveals that the court never ruled on it, nor did the Philadelphia Clerk of
Courts issue an order denying it by operation of law as mandated by
Pa.R.Crim.P. 720(B)(3)(c). On June 4, 2014, Appellant filed a supplemental
post-sentence motion raising various claims, including a challenge to the
discretionary aspects of his sentence. On August 8, 2014, the trial court
issued an order denying that motion. In the order, the court directed that
Appellant had 30 days within which to file an appeal. On August 28, 2014,
Appellant filed a notice of appeal with this Court. He also timely complied
with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Herein, he raises five issues for our review:
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1) Where the Commonwealth’s evidence failed to sustain its
burden as the Commonwealth’s witnesses were completely
inconsistent with each other in demonstrating Appellant’s guilt
and, in fact, conflicted with each other[,] and where those
witnesses failed to disprove the numerous witnesses that
comprised Appellant’s alibi defense, was the evidence insufficient
as a matter of law[?]
2) Where the evidence presented by the Commonwealth was
inherently inconsistent with itself; where only one of three
Commonwealth witnesses implicated Appellant in this crime; and
where there were several defense witnesses that did not place
Appellant at the scene of the crime, did the verdict shock the
conscience and require the grant of a new trial? Did the trial
[c]ourt abuse its discretion in not granting that new trial?
3) Where the lower [c]ourt admitted highly prejudicial habit
evidence, which led to the giving of a consciousness of guilt
charge while at the same time not permitting [the] defense … to
present evidence of habit, which was a significant and credible
portion of the defense evidence demonstrating innocence, did it
err in excluding this testimony?
4) Where the lower [c]ourt’s sentence was excessive, violated
the norms of the Sentencing Code, 42 Pa.C.S. [§] 9721(b), and
the sentence did not provide an adequate basis as to why the
maximum sentence was imposed, did the lower [c]ourt abuse its
discretion in imposing the maximum sentence for the …
conviction?
5) Does the attached Affidavit of Bruce Lee, admitting sole
responsibility, require a remand to determine whether this newly
discovered evidence requires a [new trial]?
Appellant’s Brief at 3-4.
Before addressing Appellant’s issues, we must first determine if we
have jurisdiction over his appeal. On May 22, 2015, this Court issued a per
curiam order directing Appellant to show cause why his appeal should not be
quashed as being untimely filed on August 28, 2014, from the judgment of
sentence imposed on December 6, 2013. Appellant filed a response on June
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1, 2015, arguing that a breakdown in the operation of the trial court caused
his facially untimely notice of appeal. On June 9, 2015, this Court
discharged the rule to show cause and deferred the decision on the
timeliness of Appellant’s appeal to this panel.
After reviewing the certified record, and Appellant’s response to the
rule to show cause, we agree with Appellant that a breakdown in the
operation of the lower court excuses the untimely-filing of his notice of
appeal. See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super.
2007) (stating that the general rule that an appellate court may not extend
the time for filing an appeal “does not affect the power of the courts to grant
relief in the case of fraud or breakdown in the processes of the court”)
(citing Pa.R.A.P. 105, Explanatory Note). As stated supra, the Philadelphia
Clerk of Courts failed to issue an order notifying Appellant that his December
9th motion was denied by operation of law. We have previously deemed
such an error as a breakdown in the court’s operations. See id. at 499 (“We
have also found a breakdown where the clerk of courts did not enter an
order notifying the appellant that his post-sentence motion was denied by
operation of law.”) (citing Commonwealth v. Perry, 820 A.2d 734, 735
(Pa. Super. 2003)). Because no order was issued denying Appellant’s
December 9th motion (in which Appellant sought, inter alia, an extension of
time to file an additional motion after obtaining the trial transcripts),
Appellant filed a supplemental motion on June 4, 2014, raising the issues he
now asserts on appeal. The trial court accepted that post-sentence motion,
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which was within its discretion to do. See Pa.R.Crim.P. 720(B)(1)(b). When
the court issued its August 4, 2014 order denying Appellant’s supplemental
motion, it stated that Appellant had 30 days within which to file a timely
appeal. Appellant’s appeal was filed on August 28, 2014. In light of these
circumstances, we will excuse the facial untimeliness of Appellant’s notice of
appeal.
In Appellant’s first issue, he argues that the evidence was insufficient
to sustain his conviction of third-degree murder. To begin, we note that:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Here, Appellant primarily contends that the testimony of the
Commonwealth’s three eyewitnesses - Harvey Tilghman, Jana Perry, and
Loretta Epps - was so “inherently contradictory and unreliable … that it was
insufficient as a matter of law to prove [Appellant’s] guilt[,] as well as
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insufficient to overcome the alibi evidence.”1 Appellant’s Brief at 20.
Initially, Appellant and the Commonwealth dispute whether Appellant’s
argument is a sufficiency-of-the-evidence challenge, or a weight-of-the-
evidence claim. This Court has repeatedly stated that “[a] challenge to the
credibility of evidence represents a claim that the verdict was against the
weight of the evidence[,]” not the sufficiency. Commonwealth v. Griffin,
65 A.3d 932, 939 (Pa. Super. 2013) (citing Commonwealth v. Palo, 24
A.3d 1050, 1055 (Pa. Super. 2011)). Appellant argues, however, that
because he is asserting that the evidence was so inherently unreliable that it
could not be believed, as a matter of law, he has presented a sufficiency
claim under Commonwealth v. Karkaria, 625 A.2d 1167, 1170-71 (Pa.
1993) (characterizing, as a sufficiency challenge, a claim that “the testimony
is so inherently unreliable that a verdict based upon it could amount to no
more than surmise or conjecture”).
We need not resolve the dispute regarding how to categorize
Appellant’s argument, because even accepting it as a sufficiency challenge,
we conclude that the testimony of Mr. Tilghman, Ms. Perry, and Ms. Epps
was not so inconsistent as to be inherently unreliable, as a matter of law.
Our review of the record reveals that these three eyewitnesses were present
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1
Appellant’s ‘alibi evidence’ refers to testimony by several defense witnesses
that Appellant was on the first floor of the club at the time Mr. Anderson was
attacked on the second floor of that establishment.
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in a crowded, dimly-lit club when a chaotic situation erupted. See N.T. Trial,
7/23/13, at 88-89, 125, 135-37; N.T. Trial, 7/24/13, at 24. Ms. Perry, who
stands 4’11” tall, was on a dance floor with 15 to 20 other people when she
observed a man stomping on Mr. Anderson’s head.2 See N.T. Trial,
7/23/13, at 135-37, 141. She later identified that man as Bruce Lee;
however, at trial, she testified that she picked Lee out of a photographic
array by using the “eeny meeny miny moe” method. Id. at 145-46, 149.
Ms. Epps testified that “[t]here was a lot going on” when the
altercation began, and there were “disco lights … flashing” in the darkness.
Id. at 90, 95-96. She stated that she saw two men stomping on Mr.
Anderson, but claimed that only one of the stompers was “connecting” with
Mr. Anderson’s face and neck. Id. at 90. She could not identify either of
the men who were stomping because of the dim lighting. Id. at 96.
____________________________________________
2
In the trial court’s summary of the facts, it suggests that Ms. Perry was
standing close to Mr. Tilghman, Mr. Anderson, Mr. Lee, and Appellant when
Mr. Anderson was attacked. See TCO at 2. However, our review of the
record reveals that Ms. Perry testified that after Bruce Lee ‘tugged’ on her,
pulling her half-on and half-off the dance floor, she went back onto the
dance floor and continued to dance. See N.T. Trial, 7/23/13, at 132. She
explained that she was dancing for “about a minute,” and was in the midst
of a group of people on the dance floor, when she heard a commotion and “a
scream.” Id. at 133-35. She “kind of froze” and then “stepped back to kind
of … hide [herself]” while people began to “scatter.” Id. at 135. Ms. Perry
looked towards the commotion and saw Mr. Anderson “falling back” and “a
guy stomp[ing] him twice.” Id. at 136-37. Ms. Perry testified that “[o]nce
the guy got finished stomping and … ran down the steps,” she went to Mr.
Anderson’s side and tried to “get him to move….” Id. at 137-38.
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Mr. Tilghman testified that he was standing in close proximity to Mr.
Anderson, but was facing away from him, when he heard a commotion and
turned to see Mr. Anderson on the floor. N.T. Trial, 7/24/13, at 19-20, 22-
23. He got to Mr. Anderson’s side within 10 to 15 seconds. Id. at 25.
When Mr. Tilghman was kneeling beside Mr. Anderson, someone came
“around [Mr. Tilghman’s] back” and “stomp[ed] down on [Mr. Anderson’s]
face … [a]t least two times.” Id. at 27, 28. Mr. Tilghman testified that he
jumped up, turned around, and saw that the person who had stomped on
Mr. Anderson was Appellant. Id. at 29. He pushed Appellant, who pushed
back, causing Mr. Tilghman to fall over Mr. Anderson. Id. at 29-30. Mr.
Tilghman asked Appellant, “[w]hat did you do?” Appellant replied, “[h]e
disrespected me.” Id. at 30.
In sum, there was testimony by Ms. Epps that two people were
stomping on Mr. Anderson. Mr. Tilghman identified one of those people as
Appellant, and Ms. Perry identified another as Bruce Lee. Even though Mr.
Tilghman did not identify Mr. Lee as a stomper, and Ms. Perry did not
identify Appellant, their testimony indicates that they were viewing the
altercation from different perspectives and distances, and the club was dimly
lit and crowded. Thus, it is not unreasonable that their statements would
differ, and the inconsistencies in their versions of the attack do not render
their testimony so ‘inherently unreliable’ as to make it insufficient ‘as a
matter of law.’ Rather, it was within the province of the jury to pass upon
the credibility of these witnesses, and determine what portion(s) of their
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versions of the attack to believe or disbelieve. See Commonwealth v.
Troy, 832 A.2d 1089, 1092 (Pa. Super. 2003) (stating “the trier of fact[,]
while passing upon the credibility of the witnesses and the weight of the
evidence produced, is free to believe all, part or none of the evidence”)
(citation omitted).
Moreover, the credibility of the eyewitness testimony identifying
Appellant as participating, either as a principal or an accomplice, in the
stomping of Mr. Anderson was bolstered by other evidence presented by the
Commonwealth. For instance, as the trial court points out, “[w]hen police
arrested [Appellant], he was wearing a pair of tan Timberland boots[,]” thus
demonstrating that Appellant “had the means to commit the crime.” TCO at
15. Appellant also fled “immediately after the incident and later conceal[ed
himself] before his arrest[,]” thus providing “further support of his guilt.”
Id. at 16 (citing Commonwealth v. Paddy, 800 A.2d 294, 322 (Pa. 2002)
(reiterating that “[w]hen a person commits a crime, knows that he is wanted
therefor, and flees or conceals himself, such conduct is evidence of
consciousness of guilt, and may form the basis [of a conviction] in
connection with other proof from which guilt may be inferred”)).
We also find unconvincing Appellant’s contention that the
Commonwealth failed to disprove his alibi defense. While Appellant
presented several witnesses who testified that Appellant was on the first
floor of the club at the time of the altercation, Mr. Tilghman’s testimony
contradicted that evidence. Again, it was within the province of the jury to
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determine whether to believe Appellant’s alibi evidence, or the testimony of
Mr. Tilghman.3 Consequently, we conclude that Appellant’s challenge to the
sufficiency of the evidence is meritless.
Next, Appellant attacks the weight of the evidence to support his
conviction of third-degree murder.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury's verdict is so contrary to the evidence that it shocks
one's sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial judge's
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
To summarize, Appellant essentially reiterates his argument that Mr.
Tilghman’s testimony that Appellant stomped on Mr. Anderson’s face was
inherently unreliable. Appellant again avers that Mr. Tilghman’s account of
the incident was called into question by Ms. Perry’s testimony that the
‘stomper’ was Bruce Lee. He also stresses that Bruce Lee pled guilty to
____________________________________________
3
To the extent Appellant suggests that the jury erred by crediting Mr.
Tilghman’s testimony over that of his alibi witnesses, he is challenging the
weight, not the sufficiency, of the evidence. See Griffin, 65 A.3d at 939.
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third-degree murder, which Appellant construes as unequivocal proof that
Mr. Lee was the person who did the stomping. Appellant’s Brief at 30.
Appellant further notes that Ms. Epps’ testimony that two people were
stomping on Mr. Anderson contradicted the testimony of both Ms. Perry and
Mr. Tilghman, and was also called into question by the medical examiner’s
testimony that there were no injuries to Mr. Anderson’s chest or lower body.
Appellant also asserts that his alibi defense “remained unrebutted” and,
thus, the jury should have afforded it more weight than the evidence
presented by the Commonwealth. Appellant’s Brief at 34. Interestingly,
Appellant concedes that “some of the defense witness[es’] testimony was …
inconsistent,” but he excuses those inconsistencies as “not unusual” given
the fact that five years had passed between the incident and the defense
witnesses’ testimony at Appellant’s second trial. Id.Appellant’s arguments do not demonstrate an abuse of discretion by
the trial court in rejecting his weight-of-the-evidence claim. Preliminarily,
Appellant’s excuse for the inconsistencies in the defense witnesses’
testimony is just as applicable to the contradictions he alleges in the
testimony by the Commonwealth’s witnesses. Additionally, Appellant’s alibi
evidence was rebutted, specifically by Mr. Tilghman’s testimony that he
witnessed Appellant stomp Mr. Anderson’s face. Thus, these arguments are
unavailing.
Moreover, we discern no abuse of discretion in the trial court’s
rejection of Appellant’s claim that the Commonwealth’s witnesses were so
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inconsistent as to render the verdict speculative or mere conjecture. See
TCO at 17, 19. We need not rehash our discussion regarding why the
differences in the testimony of Mr. Tilghman, Ms. Perry, and Ms. Epps do not
make their statements inherently unreliable, such that the jury could afford
them no weight. We need only reiterate that Ms. Epps testified that she saw
two men stomping on Mr. Anderson, and Mr. Tilghman and Ms. Perry
identified both Appellant and Mr. Lee, respectively, as being involved in the
altercation. While Ms. Perry’s and Mr. Tilghman’s testimony is seemingly at
odds regarding which man stomped on Mr. Anderson’s face, the jury was
free to credit Mr. Tilghman’s claim that it was Appellant, especially since the
evidence suggested Mr. Tilghman was closer to the fray, while the short-
statured Ms. Perry observed the altercation from the crowded dance floor in
the dimly-lit club. Additionally, Mr. Lee’s guilty plea does not cast doubt on
Mr. Tilghman’s testimony, as that plea does not, in and of itself, prove that
Mr. Lee was the person who stomped on Mr. Anderson’s head. Notably, we
have no record of what admissions Mr. Lee made during that proceeding.
For all of these reasons, Appellant has failed to demonstrate that the
trial court abused its discretion in rejecting his weight-of-the-evidence claim.
Thus, Appellant’s second issue does not entitle him to relief.
Appellant next asserts that the court erred by precluding him from
presenting what he characterizes as ‘habit evidence.’ We begin by noting:
The standard of review employed when faced with a challenge to
the trial court's decision as to whether or not to admit evidence
is well settled. Questions concerning the admissibility of evidence
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lie within the sound discretion of the trial court, and a reviewing
court will not reverse the trial court's decision absent a clear
abuse of discretion. Commonwealth v. Hunzer, 868 A.2d 498(Pa. Super. 2005). Abuse of discretion is not merely an error of
judgment, but rather 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. Id.Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation
omitted).
Appellant’s argument involves the court’s preclusion of certain prior
testimony by defense witness Warren Bond, a security officer at the club
where Mr. Anderson was killed. By way of background, Bond testified on
Appellant’s behalf at both his first and his second trials. Pertinent to
Appellant’s claim herein, at the second trial, Bond testified that Appellant
was on the first floor of the club when Mr. Anderson was attacked, and that
Appellant followed Bond upstairs to the second floor after the commotion
began. See N.T. Trial, 7/25/13, at 18-19. On cross-examination, the
Commonwealth impeached Bond with a portion of his testimony at
Appellant’s first trial, in which Bond stated: “This particular night, I don’t
know if [Appellant] came up the steps behind me or not. I’m not sure. But
I know I was clearing everybody out. He was standing right there. I said,
[Appellant], you need to go downstairs[.]” Id. at 29.
After the Commonwealth’s questioning of Bond, defense counsel
sought to admit a larger portion of Bond’s testimony at Appellant’s first trial.
In particular, counsel wanted to introduce Bond’s testimony that Appellant
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was a ‘regular’ at the club, and that “9[] times out of 10” Appellant would
assist Bond in defusing arguments between patrons of the club. N.T. Trial,
7/25/13, at 42. Defense counsel argued that this testimony by Bond should
be admitted to provide context to the testimony the Commonwealth used to
impeach Bond. Specifically, defense counsel asserted that the
Commonwealth was “allowed to use a portion of [Bond’s] answer [at
Appellant’s first trial] as though that was the only thing he had said in
response to the question.” Id. at 42-43. Ultimately, the court denied the
defense’s request to introduce more of Bond’s testimony, concluding that it
was irrelevant to what Appellant did on the night of Mr. Anderson’s death,
and because it was improper character evidence. Id. at 44.
Now, on appeal, Appellant devotes a large portion of his argument to
claiming that Bond’s prior testimony about Appellant’s assisting security
constituted admissible ‘habit evidence’ under Pa.R.E. 406. The
Commonwealth, however, contends that Appellant never “argue[d] below
that the testimony was admissible as ‘habit evidence.’” Commonwealth’s
Brief at 19. Our review of the record confirms the Commonwealth’s claim
that Appellant sought admission of this evidence only on the basis that it
provided context to the portion of Bond’s testimony utilized by the
Commonwealth to impeach him. Accordingly, Appellant has waived his
assertion that Bond’s testimony was admissible as ‘habit evidence.’ See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).
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However, Appellant incorporates into this third issue another
evidentiary challenge, arguing that the court erred by admitting certain
testimony by Detective Verrechio. Our review of the record reveals that the
Commonwealth re-called Detective Verrechio to the stand to rebut certain
testimony by Appellant. Namely, Appellant testified that he called Detective
Verrechio and told the detective that he was willing to come to the Homicide
Unit to speak to the police, but Detective Verrechio informed Appellant that
he did not have to come in at that time. See N.T. Trial, 7/25/13, at 62. In
rebuttal, Detective Verrechio first testified that he never had a phone
conversation with Appellant. Nevertheless, the detective went on to testify,
over Appellant’s objection, that even if he had spoken to Appellant, he would
never have told Appellant not to report to the Homicide Unit when Appellant
had an open arrest warrant for murder. Id. The detective stated that
instead, he would have attempted to convince Appellant to come in, or
would have tried to ascertain Appellant’s location so police could arrest him.
Id. Detective Verrechio was then permitted to testify regarding the
procedure that he, and other members of the Homicide Unit, follow when an
“open warrant for murder” is issued. Id. at 63-65.
In its opinion, the trial court concludes that Detective Verrechio’s
testimony “concerning his routine practice of processing outstanding arrest
warrants for a murder suspect … was properly admitted under Pennsylvania
Rule of Evidence 406….” TCO at 29. The court explains that under Rule
406, “[e]vidence of a person’s habit or an organization’s routine practice
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may be admitted to prove that on a particular occasion the person or
organization acted in accordance with the habit or routine practice.” TCO at
29 (quoting Pa.R.E. 406). The court further reasons that Detective
Verrechio’s testimony was relevant and probative, stating:
At trial, Detective Verrechio provided an informative
description of how police followed routine departmental practice
when they attempted to locate and apprehend [Appellant], who
was a murder suspect in fugitive status. Detective Verrechio’s
testimony was relevant to showing the course of conduct the
police employed after [Appellant] failed to surrender himself as
he had initially promised. The introduction of this evidence
helped the jury understand the process that police utilized in
effectuating [Appellant’s] arrest. Moreover, the probative value
of this evidence outweighed any potential prejudice to
[Appellant]. Accordingly, this court did not err in admitting this
evidence.
Id. at 29-30.
In Appellant’s brief, he primarily argues that it was unfair to admit
Detective Verrechio’s testimony as ‘habit evidence’ when the court excluded
similar ‘habit evidence’ by Warren Bond. See Appellant’s Brief at 44-46.
Again, Appellant never argued below that Bond’s testimony was admissible
habit evidence; thus, he cannot now assert this claim on appeal. Moreover,
to the extent that Appellant makes general assertions regarding the
admissibility of Detective Verrechio’s testimony, he does not cite any legal
authority, nor provide any meaningfully developed argument, to support
those claims. Consequently, he has failed to demonstrate that the trial court
abused its discretion in admitting that evidence.
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In Appellant’s fourth issue, he challenges the discretionary aspects of
his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
question exists “only when the appellant advances a colorable
argument that the sentencing judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912–13.
Griffin, 65 A.3d at 935 (quoting Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010)).
Here, Appellant has satisfied the first two prongs of the test for
obtaining review of a discretionary aspect of sentencing claim. Additionally,
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despite the Commonwealth’s argument to the contrary, Appellant has
presented a Rule 2119(f) statement in his brief to this Court. See
Appellant’s Brief at 47-49; Commonwealth’s Brief at 23 (claiming Appellant
failed to include a Rule 2119(f) statement and objecting to its omission).
Therein, Appellant contends that his sentence was “excessive and unduly
harsh” where (1) it was “nearly three times [the sentence] of Mr. Lee[;]” (2)
the court failed to consider mitigating factors; (3) the court based
Appellant’s sentence solely on the seriousness of the offense and did not
take into account, or properly balance, all of the factors that 42 Pa.C.S. §
9721(b) requires the court to consider; and (3) the court failed to state
sufficient reasons on the record for imposing “the maximum sentence.” See
Appellant’s Brief at 47-49.
Appellant has failed to demonstrate that a substantial question exists
by arguing that he received a term of incarceration significantly longer than
that imposed upon Mr. Lee. Notably, Appellant cites no legal authority to
support that such a sentencing claim warrants this Court’s review.
Additionally, as the Commonwealth points out, “[Mr.] Lee’s prior record
score, or whether there were mitigating personal circumstances in his case,
is unknown on the record of the instant case. Moreover, [Mr.] Lee accepted
responsibility and pled guilty.” Commonwealth’s Brief at 25. We agree with
the Commonwealth’s points, which Appellant does not counter. Thus, we
will not assess the merits of Appellant’s argument that his sentence is
excessive as compared to Mr. Lee’s.
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However, we will consider Appellant’s other two sentencing claims, as
they present substantial questions for our review. See Commonwealth v.
Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (finding substantial
questions where Ventura claimed that the court failed to state adequate
reasons for the sentence imposed, and argued that the court focused only on
the seriousness of the offenses and failed to consider other relevant factors)
(citations omitted); Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.
Super. 2015) (concluding that Swope’s claim that his sentence was “unduly
excessive, together with his claim that the court failed to consider
rehabilitative needs and mitigating factors upon fashioning its sentence,
presents a substantial question”). In examining the merits of Appellant’s
claims, we bear in mind that
[w]e review a sentencing court's determination for an abuse of
discretion. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d
957 (2007). “An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness,
or partiality, prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.” Id. When reviewing sentencing
matters, this Court must accord the sentencing court great
weight as it is in [the] best position to view the defendant's
character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime. Commonwealth v.
Hanson, 856 A.2d 1254, 1260 (Pa. Super. 2004).
Ventura, 975 A.2d at 1133–34.
First, Appellant complains that his sentence was excessive in light of
mitigating factors, such as his employment history and his status as “a good
family man.” Appellant’s Brief at 53. He also stresses that his sentence
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should have been mitigated by the fact that he has a history of drug and
alcohol abuse, and that the late-night attack on Mr. Anderson in a bar “was
undoubtedly alcohol driven….” Id.Appellant also contends that the court failed to properly weigh the
section 9721(b) factors, i.e., the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant. 42 Pa.C.S. §
9721(b). In particular, Appellant avers that there was “no evidence that the
public needed to be protected” where his criminal history is for non-violent
drug crimes, the most serious of which occurred in “the early 1990s….”
Appellant’s Brief at 54. He also reiterates that he has substance abuse
issues, noting that he “admitted to the Mental Health Evaluator that he often
drank at least a six-pack of beer a day.” Id. at 53. Appellant maintains that
the court ignored these factors and sentenced him based only on the
seriousness of his offense. Id. at 55.
Finally, Appellant contends that the court did not state adequate
reasons on the record for imposing his sentence. He argues that, instead,
the court “merely paid lip-service the factors that it reviewed” and provided
a “short hand” explanation for Appellant’s sentence that provides “little basis
to determine why the [c]ourt imposed the sentence” that it did. Id. at 55,
56.
Our review of the record demonstrates that the trial court did not
abuse its discretion in fashioning Appellant’s sentence. Preliminarily, based
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on Appellant’s prior record score of 5, and the offense gravity score of 14 for
the crime of third-degree murder, the standard guideline range called for a
minimum sentence of 16 to 40 years. See 204 Pa.Code § 303.16. Thus,
Appellant’s minimum sentence of 20 years’ incarceration is within the
standard range. Additionally, the trial court had the benefit of both a
presentence report, as well as a mental health evaluation, and explicitly
stated that it considered both in fashioning Appellant’s sentence. N.T.
Sentencing, 12/6/13, at 5, 24. As such, “we are required to presume that
the court properly weighed the mitigating factors present in the case.”
Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006) (citing
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)).
This Court has also held that “[t]he sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the record by
indicating that he or she has been informed by the pre-sentencing report;
thus properly considering and weighing all relevant factors.” Fowler, 893
A.2d at 767 (citing Commonwealth v. Burns, 765 A.2d 1144, 1150-51
(Pa. Super. 2000) (citations omitted); Commonwealth v. Egan, 451
Pa.Super. 219, 679 A.2d 237 (1996)). Here, not only did the sentencing
court review the presentence report and mental health evaluation, but it also
stated that it considered the “factors mandated by both the legislature and
appellate Courts.” N.T. Sentencing, 12/6/13, at 24. The court reiterated
the egregious facts of Appellant’s crime, and noted that while Appellant still
claimed his innocence, the jury had concluded otherwise. Id. at 24-25. The
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court stated that it was imposing “a sentence consistent with who [Appellant
is], the crime committed, [Appellant’s] need for rehabilitation and society’s
need for protection.” Id. at 25. After sentencing Appellant in the standard
guideline range, the court directed that he “complete drug and alcohol
therapy[,]” thus indicating the court’s consideration of Appellant’s
rehabilitative needs. Id. In sum, the totality of the court’s comments at
sentencing demonstrate that the court did not abuse its discretion in
fashioning Appellant’s standard-range sentence.
In Appellant’s fifth and final issue, he contends, for the first time on
appeal, that he has obtained after-discovered evidence warranting a new
trial or, at the very least, a remand to the trial court for an evidentiary
hearing. Specifically, Appellant has allegedly obtained a statement from
Bruce Lee (attached to Appellant’s brief as “Appendix C”) in which Mr. Lee
admits that he was the only person who attacked Mr. Anderson. Mr. Lee
further states that Appellant was on the first floor of the club during the
altercation. See Appellant’s Brief at Appendix “C.” Mr. Lee also claims that
he was subpoenaed to testify at Appellant’s trial, but he refused to take the
stand. Id. He asserts that he has now “had a change of heart and would
testify” to the facts set forth in his statement. Id.
Preliminarily, we note that Appellant has followed the proper procedure
for asserting this after-discovered evidence claim, realized during the
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pendency of his appeal.4 See Comment to Pa.R.Crim.P. 720 (“[A]fter-
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….”). Because Appellant is raising this
issue for the first time herein, we do not consider it appropriate to evaluate,
in the first instance, whether his claim meets the four-pronged after-
discovered evidence test.5 Instead, we will determine whether he has
satisfied the pleading requirements of Rule 720 so as to warrant an
evidentiary hearing before the trial court. In Commonwealth v. Castro,
____________________________________________
4
Notably, on August 7, 2015, Appellant filed with this Court an “Application
for Remand,” requesting that we direct the trial court to conduct an
evidentiary hearing to determine if Mr. Lee’s affidavit warrants a new trial.
This Court issued a per curiam order denying Appellant’s petition without
prejudice to his right to raise the issue in his appellate brief. In his initial
“Application for Remand,” Appellant attached a hand-written document
purportedly drafted by Bruce Lee. In his brief to this Court, the statement is
type-written, hand-dated August 16, 2015, and signed by Bruce Lee.
However, it is not notorized.
5
Our Supreme Court has declared:
To obtain relief based on after-discovered evidence, appellant
must demonstrate that 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.
Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009) (quoting
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008)).
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93 A.3d 818 (Pa. 2014), our Supreme Court offered guidance on those
pleading requirements, cautioning that “[t]he relevant [Rule 720] motion is
not to serve as a preemptive means of securing a hearing that will itself
comprise the investigation.” Id. at 828. Rather, such “a motion must, at
the very least, describe the evidence that will be presented at the hearing”
to meet the after-discovered evidence test. Id. at 827, 828.
Here, Appellant claims that Mr. Lee’s admission that he was Mr.
Anderson’s sole attacker meets the prongs of the after-discovered evidence
test, stating:
Given [Mr. Lee’s] Affidavit it is clear why Mr. Lee was not
called [at Appellant’s trial]. He was brought down to [c]ourt [for
Appellant’s trial] but refused to testify on [Appellant’s] behalf.
The record also reflects that Mr. Lee was actually brought down
by trial [c]ounsel from state prison. [N.T. Trial, 7/25/13,] at 10.
However, critically, he would not have testified then for the
defense. Hence[,] his evidence was not available for trial.
This is not merely cumulative evidence but was evidence
from the person who solely attacked Mr. Anderson and provided
the motive for the attack, i.e., that Lee wanted to get Anderson
before Anderson got him.[6] Thus, this evidence is also not
merely for impeachment purposes.
Finally, this evidence is of such a nature and character that
a different verdict will likely result if a new trial is granted. It
reflects the fear in Mr. Lee and why he would so viciously attack
Mr. Anderson. He felt that his life was threatened. He also
____________________________________________
6
Appellant seemingly is referring to Mr. Lee’s comment in the affidavit that
Mr. Anderson “confront[ed] [Lee] … aggressively” in the club, and told Lee
that “he had something for [Lee] when [they] leave the club,” which Lee
interpreted as a threat. See Appellant’s Brief, Appendix “C.”
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admits to knocking Anderson down and then blacking out and
kicking him so viciously that Harvey Tilghman tried to intercede.
Thus, [Lee] also puts himself in the altercation with
Tilghman and demonstrates that this fight was with him and not
[Appellant]. This would have contradicted the critical testimony
of Harvey Tilghman about his grappling with [Appellant] before
Security arrived. This testimony would also have undercut
Tilghman’s testimony that [Appellant] kicked Mr. Anderson after
Tilghman arrived to help his friend. It would have also undercut
Tilghman’s testimony that [Appellant] struck Anderson because
he had been “disrespected.”
Given that this evidence prima facially meets all the prongs
of the newly discovered evidence test, it is respectfully
submitted that this matter be remanded for a hearing on this
new evidence.
Appellant’s Brief at 59-60.
In arguing that no hearing is warranted, the Commonwealth first
asserts that Lee’s admission is not ‘new’ evidence because, “at the time of
trial, [Appellant] would have known whether he was with [Mr.] Lee that
night and whether he himself stomped on the victim’s face.”
Commonwealth’s Brief at 28. We disagree with the Commonwealth’s
reasoning. Under the Commonwealth’s approach, no newly-discovered,
exculpatory evidence could ever satisfy the above-stated test, because the
Commonwealth could simply argue that the defendant always knew of his
innocence. Moreover, the new evidence asserted by Appellant is not that
Mr. Lee committed the crime, but that Mr. Lee is now willing to admit that he
was Mr. Anderson’s sole attacker. In our view, this meets a prima facie
threshold of ‘new evidence.’
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The Commonwealth also contends that Appellant has failed to prove
that Mr. Lee’s statement was ‘unavailable’ to him at the time of trial, relying
on Commonwealth v. Frey, 517 A.2d 1265 (Pa. 1986), in support. At the
outset, Frey is procedurally distinguishable. Frey raised an after-discovered
evidence claim in a petition filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. Id. at 1267. The PCRA court assessed that
petition and denied it, after which this Court affirmed. Id. Our Supreme
Court accepted Frey’s appeal, and noted that because the PCRA court had
denied Frey a new trial, the Court would not reverse that decision “unless
there has been a clear abuse of discretion….” Id. at 1268. Ultimately, the
Supreme Court affirmed.
Here, however, Appellant is raising his after-discovered evidence claim
for the first time on direct appeal. The trial court has never ruled on
Appellant’s issue and, thus, we are not assessing whether the lower court
abused its discretion by finding that Appellant did or did not meet the after-
discovered evidence test. Rather, we are assessing whether Appellant has
met “the pleading required for a Rule 720 motion” in order to obtain an
evidentiary hearing. Castro, 93 A.3d at 826 (emphasis added). Based on
the argument by Appellant, set forth supra, we conclude that he has met
Castro’s requirement of “describ[ing] the evidence that will be presented at
the hearing[,]” and has made a prima facie showing that he meets the after-
discovered evidence test. Accordingly, it is appropriate for us to remand
Appellant’s case for the trial court to conduct a hearing and determine, in
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the first instance, whether Appellant has proven, by a preponderance of the
evidence, that the four factors of that test have been met in order for a new
trial to be warranted. See Commonwealth v. Rivera, 939 A.2d 355, 359
(Pa. Super. 2007) (finding that where an after-discovered evidence claim
was raised for the first time on appeal, “procedure demands that the lower
court develop the record” and decide, “in the first instance[,]” whether the
defendant is entitled to a new trial based on that after-discovered evidence).
If the court determines that no new trial is necessary, the court may re-
impose Appellant’s sentence.
Judgment of sentence vacated. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2016
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