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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TODD DWAYNE DAWSON, JR.
Appellant No. 687 MDA 2015
Appeal from the Judgment of Sentence September 2, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002474-2013
BEFORE: PANELLA, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MAY 06, 2016
Appellant, Todd Dwayne Dawson, Jr., appeals from the judgment of
sentence entered September 2, 2014, in the Court of Common Pleas of
Berks County, following his conviction of two counts of robbery,1 two counts
of conspiracy to commit robbery,2 burglary,3 and conspiracy to commit
burglary. Additionally, Appellant has filed a “Request for a Remand to the
Trial Court to Consider Application for a New Trial Based on After Discovered
Evidence Pursuant to Pa.R.Cr.P. 720(C)” (“Motion for Remand”). After
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 3701(a)(1)(ii), (iv).
2
18 Pa.C.S.A. § 903(a)(1).
3
18 Pa.C.S.A. § 3502(a).
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review, we grant Appellant’s request and remand the case for a hearing on
Appellant’s after-discovered evidence claim.
We summarize the facts adduced at the jury trial as follows. In March
2012, Justin Hall, Alex Dephilipo, and Joseph Wooding shared an apartment
located at 602 Briar Circle South located in Kutztown, Pennsylvania. At the
time, the roommates were students at Kutztown University. On the evening
of March 30, 2012, Hall observed through a second floor window a group of
six men gathered at the outside stoop to the apartment. He recognized one
of the individuals as Christopher Biney, whom he had previously met at
orientation.
Shortly thereafter, Hall heard a downstairs window being forced open
and the sounds of an individual entering the apartment through that
window. After Hall unsuccessfully attempted to warn his roommates of the
intruders, he locked himself in his bedroom. A few moments later, Hall heard
what sounded like someone being hit in the stairwell and then heard
someone attempting to force open the bedroom door. At this point, Hall
jumped out of his bedroom window and ran to a friend’s house.
When Hall returned to the apartment approximately 45 minutes later,
he observed that his roommates, Wooding and Dephilipo had sustained
minor cuts and swelling to their faces during the robbery. The roommates
soon discovered that an Xbox (a video game console), three laptops, a cell
phone and multiple marijuana plants were missing from the apartment.
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Christopher Biney was subsequently arrested for his suspected
involvement in the robbery. Although Biney initially failed to identify any
other participants, he later indicated to police that Appellant, Jesse Thomas,
Anthony Battle and Kali Smith were also involved in the robbery. Co-
conspirator Anthony Battle also gave a statement to police implicating
Appellant’s involvement in the robbery.
Based upon Biney and Battle’s statements to police, Appellant was
charged with multiple counts of robbery, burglary, and conspiracy. At the
jury trial conducted on August 6, 7, and 8, 2014, neither Hall nor his
roommates were able to identify the perpetrators of the robbery. Biney and
Battle both testified to Appellant’s involvement consistent with their prior
statements to police. The jury ultimately convicted Appellant of the above-
mentioned charges.
On September 2, 2014, the trial court sentenced Appellant to an
aggregate term of 4½ to 12 years’ imprisonment. Appellant subsequently
filed an untimely pro se notice of appeal, which this Court quashed.
Appellant then filed a motion to reinstate his direct appeal rights nunc pro
tunc, which the trial court granted. This timely appeal followed.
On May 22, 2015, during the pendency of his direct appeal, Appellant
filed a Motion for Remand based upon after-discovered evidence. Appellant
asserted in the motion that on May 18, 2015, he received from Kali Smith’s
counsel a notarized statement from co-conspirator Anthony Battle in which
Battle recants his testimony implicating Appellant and Smith in the robbery
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of 602 Briar Circle South.4 In the statement attached to Appellant’s motion,
Battle states that while incarcerated, he and Christopher Biney concocted a
plan to place the blame for the robbery on Appellant and Smith in an effort
to get less time for themselves. Battle further asserted that he had a copy of
Christopher Biney’s statement implicating Appellant in the robbery when he
was interviewed by the Kutztown Police Department and that he read that
statement as if it were his own. Battle maintained that Appellant and Smith
were innocent of the crimes for which they were convicted. Appellant now
argues that this information constitutes after-discovered evidence
warranting a new trial.
Pennsylvania Rule of Criminal Procedure 720(C) provides that “[a]
post-sentence motion for a new trial on the ground of after-discovered
evidence must be filed in writing promptly after such discovery.” The
comment to this rule indicates that “after-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[.]” Id. Comment.
Whether a petitioner is entitled to a new trial must be made by the
trial court at an evidentiary hearing. See Commonwealth v. Padillas, 997
A.2d 356, 363 (Pa. Super. 2010). At the evidentiary hearing, it is the
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4
The statement was notarized on November 4, 2014, several months after
Appellant’s judgment of sentence was entered.
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petitioner's burden to prove, by a preponderance of the evidence, 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. See, e.g., Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa.
2008).
In Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014), our Supreme
Court addressed whether a petitioner may “meet the test for after-
discovered evidence where [he] proffers no evidence, but instead relies on a
newspaper article.” Castro, 93 A.3d at 824. Concluding that a newspaper
article is not evidence but is rather “a collection of allegations that suggest
such evidence may exist,” id. at 825, the Supreme Court offered the
following guidance in connection with this Court’s consideration of a Rule
720 motion:
We decline to impose a strict requirement that the proponent of
a Rule 720 motion attach affidavits or other offers of proof; the
rule does not contain express language requiring this, in contrast
to the rules pertaining to PCRA petitions. However, we hold a
motion must, at the very least, describe the evidence that will be
presented at the hearing. Simply relying on conclusory
accusations made by another, without more, is insufficient to
warrant a hearing.... Absent identification of the actual
testimony, physical evidence, documentation, or other type of
evidence to support the allegations of [the officer’s] wrongdoing,
we cannot conclude appellee had evidence to offer; to conclude
otherwise would be speculation.
Id. at 827.
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Here, Appellant was not alerted to Battle’s recantation statement until
March 18, 2015, well after the conclusion of trial. We are therefore satisfied
that Appellant has met the first prong of the after-discovered evidence test.
We further find that the evidence is not cumulative or corroborative, as
Biney and Battle’s statements at trial implicated Appellant in the robbery.
Thus, the second prong is met.
Regarding the remaining prongs of the test, we are guided by this
Court’s decision in Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super.
2015), which the panel considered on remand from the Pennsylvania
Supreme Court in light of Castro. The appellant in Perrin was convicted of
aggravated assault, robbery and related charges based primarily upon the
testimony of Lynwood Perry, who informed the jury that Appellant had
joined him and another individual in committing the robbery. See id. at 51.
While appellant’s direct appeal was pending, the District Attorney’s office
forwarded to appellant’s counsel a communication from the FBI, which
summarized an interview with a cellmate who had been incarcerated with
Perry. See id. The cellmate stated Perry had indicated that he falsely
testified against Appellant because “someone had to ‘go down’ for it,” but
that Appellant was not actually involved in the crime. Id.
Given that the victim had prevaricated in his identification of the
appellant, the panel found significant the evidence that the key witness at
trial admitted that he had perjured himself and that the appellant had
nothing to do with the crime. See id. at 53. The panel quoted from its
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original decision, acknowledging that it did “not know at that point the
extent of the statements against his interest that Perry made to [his
cellmate], or how much the evidence will point towards impeachment of
Perry versus exculpation of Appellant.” Id. (citation omitted). Nonetheless,
the panel ultimately concluded that because the evidence pointed toward
Appellant’s innocence it was “appropriate to remand the case to allow
Appellant to flesh-out his claim for a new trial before the trial court.” Id.
We find the panel’s reasoning in Perrin applies equally to the instant
case. Here, none of the victims identified Appellant as a participant in the
robbery. The sole evidence of Appellant’s participation in the robbery
consisted of Battle and Biney’s testimony at trial—testimony that Battle’s
recantation now calls into serious doubt. The proof of the after-discovered
evidence at issue is a notarized statement of an indicted co-conspirator
admitting that he colluded with another co-conspirator, who also testified
adversely to the Appellant at trial, to falsely implicate Appellant in the
robbery. This evidence of Appellant’s innocence is decidedly more substantial
than the unsubstantiated newspaper article the Supreme Court found
insufficient in Castro. We find that, at the very least, Appellant should be
afforded the opportunity to raise his after-discovered evidence claim at a
hearing before the trial court.
Accordingly, we grant Appellant’s motion for remand and remand this
case for an evidentiary hearing to determine whether a new trial based upon
the after-discovered evidence is warranted. If the trial court determines that
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a new trial is not warranted, Dawson may file another appeal, which shall be
treated as a direct appeal from his judgment of sentence.
Motion for Remand is granted. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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