Commonwealth v. Perrin

CONCURRING OPINION BY

WECHT, J.:

I join in full Judge Strassburger’s thoughtful opinion disposing of this case. Given the limited body of Pennsylvania case law addressing after-discovered evidence that emerges during the pendency of a direct appeal of a judgment of sentence, I agree that Commonwealth v. Rivera, 939 A.2d 355 (Pa.Super.2007), and Commonwealth v. Castro, 55 A.3d 1242 (Pa.Super.2012) (era banc), compel a remand for the trial court to review the after-discovered evidence and determine whether it necessitates a new trial.

There is no question that Pennsylvania courts long have applied the four-part test cited by Judge Strassburger to assess the necessity of a new trial in light of evidence discovered after a conviction:

To obtain relief based on after-discovered evidence, [the] 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.

Maj. Mem. at 5 (quoting Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84, 109 (2009)). “The determination whether an appellant is entitled to a new trial must be made by the trial court at an evidentiary hearing. At the evidentiary hearing, the appellant must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be warranted.” Castro, 55 A.3d at 1246 (citing Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.Super.2010)). We have applied this test not just in the context at bar but also in post-trial practice and in the context of collateral relief. See Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976) (post-trial); Commonwealth v. Galloway, 433 Pa.Super. 222, 640 A.2d 454 (1994) (collateral).

Nonetheless, I share the apprehensions expressed by the Honorable Richard B. Klein in Commonwealth v. Choice, 830 A.2d 1005 (Pa.Super.2003), regarding our formulation of the test that the trial court is directed to apply in determining whether after-discovered evidence necessitates a new trial:

[T]he majority relies on that statement repeated so often it has become an adage that, “the evidence will not be used solely for the purposes of impeachment.”
This is proof of the reality of the legal maxim, “communis error facit jus,” or “common error, repeated many times, makes law.”
I believe that what we have called a four-prong test is really only a three[-] prong [ ]test. Prong # 3, the “only for impeachment” prong, is just an extension of Prong # 4, that the new evidence would not affect the outcome. Normally, evidence that just would tend to impeach what a witness said would not change the outcome at a new trial.
A bald statement that evidence that only impeaches would never justify a new trial defies common sense and justice.
*668Assume, for example, that a defendant is convicted of a robbery when the victim cannot make an identification, and the sole identification is made by a citizen who comes forth later to report that he witnessed the robbery and saw the defendant, whom he recognized. The witness identifies the defendant at trial. Suppose later it is discovered that this witness was an enemy of the defendant and in fact was a prisoner in an out-of-state jail at the time the robbery took place. Under the language of the rule as has been enunciated, this testimony about the witnesses’ jailing, proving that it was impossible for him to see what he said he saw, would not be enough to allow a new trial.... Since testimony about the incarceration would “be used solely for the purposes of impeachment,” this information would not be considered newly discovered evidence that justifies a new trial.
If one examines the cases that quote the so-called four-prong test, one can see that there is no case where the only grounds disqualifying the evidence from being considered after-discovered to warrant relief is the fact that it only impeaches. Actually, Prong # 3 is almost always cited in addition to Prong # 4, which denies a new trial where the evidence is not of such a nature and character that a different outcome is likely. However, a common sense approach is that in some cases, impeachment evidence is likely to change the result.

Id. at 1009-10 (Pa.Super.2008) (Klein, J., dissenting) (footnote omitted; emphasis in original).

Bench and bar alike would benefit from a recognition that the critical inquiry concerns the degree of probative value of the proffered evidence and the likelihood that a different outcome would have resulted had the evidence been available to a defendant at trial. This assessment is one that trial courts are well-equipped to make without undue emphasis on sometimes protean terms of art like “impeachment.”

My review of this case and the underlying body of Pennsylvania case law also has revealed another source of concern: Our unclear, unstated standard of review for considering the necessity of remanding a case involving after-discovered evidence for trial court consideration.1 In this context, the four-part test, as such, is not ours to apply; rather, our task is to determine whether to return a case to the trial court for consideration of the new evidence in light of that test. Nonetheless, without an articulated standard of review, it is not difficult to read our cases as though this Court was measuring the after-discovered evidence against the test directly; indeed, we have used precisely such language. See, e.g., Castro, 55 A.3d at 1247. (citing our decision in Rivera, and characterizing our analysis in that ease as one “[a]pplying the four-part after-discovered evidence test”). In short, we have to some extent left open the question of what an appellant must show to persuade us that further fact-finding is required, rendering the task of an appellant in presenting his case for remand to the trial court more difficult than it should be.

Fortunately, our cases tacitly imply a fairly stable standard of review: Our task is to review only the quantum and charac*669ter of the evidence in question, with particular focus on its potentially exculpatory effect in the context of the other evidence adduced at trial. We must ask ourselves whether, if the evidence were credited by the trial court applying the four-part test, that court would have a reasonable basis for ordering a new trial. To do otherwise — to demand a near certainty of the award of a new trial — would be to assess the evidence in place of the fact-finder, precisely the task best left to the trial court.

Our law requiring application of the four-part test to newly discovered evidence has been clear for many years.2 Hence, absent action by the Pennsylvania Supreme Court, trial courts must continue to apply that test. But in my view, they should do so in the light cast by Judge Klein’s comments. In practice, the third and fourth prescribed inquiries tend to collapse into each other. The fourth question, regarding the likelihood of a different result, tends to dominate the entire inquiry. I will go one step further and suggest that the second factor, concerning whether the after-discovered evidence in question would be merely cumulative, similarly is subsumed by the question of prejudice.

Ultimately, it falls to the trial court to assess, under the circumstances of a given case, the necessity of a new trial. That assessment must be informed by the presence of prejudice, ie., the likelihood of a different result. When after-discovered evidence emerges during the pendency of a direct appeal, we should seek to determine only whether the appellant has made out a prima facie case to the effect that a trial court reasonably may conclude that a new trial is warranted. While the standard in the trial court is whether the defendant has shown the likelihood of a different outcome at trial by a preponderance of the evidence, see Castro, supra, we cannot set the bar so high without encroaching upon the trial court’s prerogatives.

I believe that bench and bar alike would benefit from a simplification of the four-part inquiry. It is substantively sound but confusingly stated. As well, this Court would benefit a great deal by distinguishing and defining its standard of review to separate its task clearly from the task of the trial court.

. Our standard of review concerning whether a trial court erred in determining whether to award a new trial is well-settled. See Padillas, 997 A.2d at 361 (Pa.Super.2010) ("When we examine the decision of a trial court to grant a new trial on the basis of after-discovered evidence, we ask only if the court committed an abuse of discretion or an error of law which controlled the outcome of the case.” (internal quotation marks omitted)).

. See, e.g., Commonwealth v. Schuck, 401 Pa. 222, 164 A.2d 13, 17 (1960); Commonwealth v. Green, 358 Pa. 192, 56 A.2d 95, 97-98 (1948) (substantially applying the same factors without clearly spelling out a four-part test); Commonwealth v. Carter, 272 Pa. 551, 116 A. 409 (1922) (same).