Commonwealth v. Foreman

CONCURRING OPINION BY

WECHT, J.

I join the well-reasoned opinion of the learned majority. I write separately to express briefly my concerns regarding the standard we utilize to examine newly discovered evidence claims under the Post-Conviction Relief Act (“PCRA”).1

As the majority correctly states, to be eligible for relief on a claim of after-discovered evidence, a PCRA petitioner must plead and prove by a preponderance of the evidence “[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.” 42 Pa.C.S. § 9543(a)(2)(vi). To evaluate such a claim:

[an] 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.

See, Majority Op. at 537 (quoting Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008)).

My concern lies with the third prong of this test. In the case sub judice, there is no doubt that the proffered after-discovered evidence could be used only for impeachment purposes. Indeed, the evidence constitutes classic crimen falsi evidence, which can be admitted only for impeachment purposes. Thus, I take no issue with the majority’s application of the test in this ease. I agree that, as a matter of controlling law, Appellant is not entitled to relief.

Nevertheless, I believe we should apply the third prong with caution. To this end, I agree with Judge Klein’s well-reasoned dissenting opinion in Commonwealth v. Choice, 830 A.2d 1005 (Pa.Super.2003). In Choice, Judge Klein noted that, in the typical case, after-discovered evidence that affected only credibility would not justify a new trial. Judge Klein opined that this was because evidence affecting credibility determinations generally will not be “of such nature and character that a different verdict will likely result if a new trial is granted.” Id. at 1012 (Klein, J., dissenting). In other words, Judge Klein believed that most after-discovered evidence claims involving impeachment evidence could be disposed of merely by application of the final prong of the above-quoted test, because impeachment evidence, as such, seldom suffices to establish prejudice when evaluated in the totality of the trial record.

However, Judge Klein was unwilling to foreclose the possibility that impeachment evidence could be of such nature and quality that a new trial should result. Neither am I. As Judge Klein stated, “if the goal is *539to find justice, there well may be circumstances where after-discovered evidence that goes only to attack credibility may justify a new trial.” Id. The case we decide here today does not raise such concerns.

With all of this said, I am of course bound to apply the standard as elucidated by our Supreme Court. In this case, its application precludes relief.

. See generally 42 Pa.C.S. §§ 9541-46.