J-A25019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELVIN ORTIZ :
:
Appellant : No. 2086 MDA 2018
Appeal from the Judgment of Sentence Entered June 21, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001050-1998
BEFORE: BOWES, J., OLSON, J., and KING, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED: JANUARY 11, 2022
A bungled robbery resulting in the shooting death of a young father. No
video surveillance, physical evidence, or eyewitness identification testimony.
A state senator’s son, his fifteen-year-old pregnant girlfriend, and a jailhouse
snitch, who say the seventeen-year-old defendant confessed to them that he
did it. A defendant, with an alibi confirmed by a dozen witnesses, who took
the stand and repeatedly proclaimed his innocence. A guilty verdict.
Fast forward twenty-two years. The former pregnant-fifteen-year-old
recants her testimony. She now says that her boyfriend admitted to her at
the time that he was one of the robbers. She has no personal knowledge of
defendant’s involvement. She lied to protect her boyfriend and destroyed
evidence linking him to the crime.
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While these facts may sound straight out of a crime novel, they are the
facts before us in this appeal. The Majority affirms the trial court’s denial of
a new trial, holding that Tina Valentin Hiester’s recanted testimony likely
would not change the outcome of a new trial. I strongly disagree and
respectfully dissent. After twenty years on the bench, I believe this is one of
those rare cases where recantation testimony compels a new trial.
At the November 20, 2018 hearing on after-discovered evidence, Ms.
Hiester testified that the testimony she gave at Appellant’s trial implicating
him in the shooting of George Clauser was untruthful. She never heard
Appellant admit to participating in the robbery. She testified further that her
then-boyfriend Caltagirone was involved, that he had her dispose of a mask
and hoodie on the night of the murder, and that she had lied for him.1
The learned Majority equates the scope of Ms. Hiester’s recantation
testimony with the defense’s cross-examination of her at trial, and
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1 Ms. Hiester testified that she first went to the police in 2005 “and tried
clearing her conscience and making this right.” N.T. 11/20/18, at 23. She
had recently lost her one-week old infant and felt it “that it was God’s way of
punishing her” for taking the life of someone else’s son for a crime he had not
committed. Id. at 6. No one took her seriously. In 2011, she renewed her
efforts after her parents died and she was diagnosed with stomach cancer.
She “wanted to get the truth out and the weight off her shoulders and clear
my conscience.” N.T, 11/20/18, at 12. She called the Reading Police
Department and an officer interviewed her. A supplemental police report was
prepared one month later, which Ms. Hiester stated did not accurately
represent what she told the officer. See Defense Exhibit 4. There was no
follow-up. It was only in “the past year” that she found someone in Appellant’s
family through Facebook, who placed her in contact with defense counsel, and
the April 24, 2018 affidavit was prepared. See Defense Exhibit 1.
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characterizes it as simply undermining the testimony of Caltagirone and
Melendez. I submit that the scope of Ms. Hiester’s new testimony goes far
beyond her trial testimony. As the trial court noted, Ms. Hiester’s original trial
testimony “largely corroborated the testimony of her then-boyfriend, John
Caltagirone.” Trial Court Opinion, 12/9/19, at 15. Ms. Hiester’s new
testimony, which the trial court found credible, not only retracted her
corroborative testimony, but implicated Caltagirone in the crime. In addition,
Ms. Hiester’s account bolstered Appellant’s proffered alibi.
The Commonwealth’s case against Appellant consisted largely of his
admissions of guilt to Caltagirone, which were corroborated by Ms. Hiester,
Appellant’s inculpatory statements to fellow inmate Calixto Melendez, and the
eyewitness patron’s description of the clothing worn by the two perpetrators,
which was similar to clothing worn by Appellant and his brother on the evening
of the incident.2
At the hearing on Appellant’s post-sentence motion raising after-
discovered evidence, Ms. Hiester disavowed any personal knowledge of
Appellant’s involvement in the robbery and murder of George Clauser. She
stated that her original testimony implicating Appellant was based solely upon
what Caltagirone told her. She reported inculpatory statements Caltagirone
made to her the night of the robbery and described her role in disposing of
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2 Appellant’s brother was never charged in the robbery/murder.
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evidence that incriminated him. She also explained that she had lied at
Appellant’s trial to protect Caltagirone because they were romantically
involved.
Moreover, Ms. Hiester clarified that, although Caltagirone was
purportedly working security at a Boscov’s store when the crime was
committed, he left work that evening. She explained that Caltagirone or his
co-worker would frequently leave work after clocking in, and the other would
cover, and that was the case on December 23, 1997. In addition, Ms. Hiester
described how, on that date, Caltagirone directed her to retrieve a bag he had
hidden earlier behind the sofa in the home she shared with her mother. Later
that evening, in her presence, Caltagirone removed a hoodie, ski mask, and
handgun from that bag and placed the hoodie and mask in two bags. She and
Caltagirone drove to the Schuylkill River and, at Caltagirone’s direction, she
threw the bags into the river. Caltagirone later disposed of the handgun when
he went to Delaware. Thus, Ms. Hiester not only recanted her trial testimony,
but presented compelling new evidence that Caltagirone was involved in the
robbery/murder. Her testimony, if believed, effectively destroyed the
credibility of the Commonwealth’s key witness, Caltagirone.
Ms. Hiester also confirmed that Appellant paged her that evening, and
when she and Caltagirone telephoned him in response, she heard Appellant
ask for a ride from a birthday party. During a second telephone conversation
with Appellant approximately fifteen to twenty minutes later, Appellant
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informed Caltagirone that he did not need a ride as he was staying longer at
the party and had a ride. Her fresh account of those conversations thoroughly
undercut Caltagirone’s testimony that Appellant admitted shooting George
Clauser during the telephone calls. Further, it tended to buttress Appellant’s
alibi that he was at the birthday party when the robbery/murder occurred.
In order to obtain relief based on after-discovered evidence, 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.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). The appellant
need only establish these four circumstances by a preponderance of the
evidence. See Commonwealth v. Payne, 210 A.3d 299, 302-303
(Pa.Super. 2019) (en banc) (finding the appellant had established by a
preponderance of the evidence that after-discovered DNA evidence would
have likely changed the decision of the jury).
My esteemed colleagues find that Appellant met the first three
requirements, and I agree. Appellant demonstrated that the evidence did not
exist at the time of trial. Furthermore, he established that it was not merely
corroborative nor cumulative of other evidence offered at trial, nor offered
solely to impeach another witness’s testimony. Nonetheless, the Majority
agrees with the trial court that the fourth requirement was not met herein,
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i.e., that Appellant failed to establish by a preponderance of the evidence that
Ms. Hiester’s testimony would likely result in a different verdict if a new trial
was granted. The Majority finds that her recantation testimony would not
undermine the Commonwealth’s theory of guilt or hinder its ability to present
the same theory of culpability at a new trial. I disagree.
In denying Appellant a new trial, the trial court prefaced its reasoning
with the observation that “recantation testimony is inherently unreliable,”
especially when it involves an admission of perjury. Trial Court Opinion,
12/9/19, at 19 (quoting Commonwealth v. Henry, 706 A.2d 313, 321 (Pa.
1997)) (citations omitted). Nonetheless, the court stated that it was “satisfied
that [Ms.] Hiester’s recantation [was] credible,” and that Appellant’s
“conviction was, in fact, based in part on perjured testimony.” Id. at 19-20.3
Despite that conviction, however, the court concluded that Ms. Hiester’s
recantation testimony was not likely to result in a different verdict if a new
trial was granted. Id. at 20. The court reasoned that the jury believed her
when she lied at trial, and stated “it was just as possible that the jury would
again choose not to believe that everything [Ms.] Hiester knows about
[Appellant’s] involvement in the shooting, she learned second-hand from John
Caltagirone.” Id. at 22. The court also added that Ms. Hiester was not the
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3The court found Ms. Hiester credible despite concerted attempts to impeach
her testimony with evidence that she and Caltagirone had been involved in a
contentious child custody dispute and suggestions that she was mentally
unstable.
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only person to testify as to Appellant’s involvement; there were two other
witnesses, Caltagirone and Calixto Melendez, who also testified that Appellant
confessed. Id.
In suggesting that the jury might not believe Ms. Hiester, the trial court
did not properly view the after-discovered evidence. In determining whether
after-discovered evidence would likely change the result of a trial or hearing,
“a court must examine the persuasiveness of the new evidence assuming
the fact-finder believes it.” Payne, supra at 302-303 (emphasis added).
This Court held in Payne that such an inquiry involves evaluation of “(1) the
nature of the new evidence; (2) whether, and to what extent, the new
evidence is consistent or inconsistent with other trial testimony; and (3)
whether, and to what extent, the new evidence is consistent or inconsistent
with documentary evidence.” Id. (citing Commonwealth v. Fiore, 780 A.2d
704, 713-14 (Pa.Super. 2001)).
In Payne, this Court cited our Supreme Court’s decisions in
Commonwealth v. Bulted, 279 A.2d 158, 161-62 (Pa. 1971), and
Commonwealth v. Mount, 257 A.2d 578 (Pa. 1969), in which the Court
advocated examination of case-specific factors, such as the prosecution’s
theory and closing remarks at the original trial, to determine the importance
of the new evidence.
Employing that approach herein, I would point out that the
Commonwealth’s case against Appellant at the original trial rested primarily
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on his alleged confessions to Caltagirone, Ms. Hiester, and Melendez.
Appellant took the stand in his own defense and denied that he committed the
robbery that culminated in the shooting death of George Clauser. He stated
further that he had never told these people that he was involved in the robbery
and that they were lying. The after-discovered evidence, if believed, confirms
that Ms. Hiester was indeed lying, and that Appellant never made inculpatory
statements to her, or to Caltagirone in her presence. Furthermore,
Caltagirone implicated himself in the robbery in statements he made to Ms.
Hiester and enlisted her help in disposing of a dark-colored hoodie and a mask
that night. Hence, the after-discovered evidence wholly discredits the trial
testimony of two of the three critical Commonwealth witnesses against
Appellant.
The importance of the testimony of Caltagirone and Ms. Hiester to the
Commonwealth’s case is evident from the prosecutor’s closing argument. The
Commonwealth emphasized Caltagirone’s testimony that, shortly before the
robbery/murder, Appellant tried to recruit Caltagirone to rob a business or
pizza shop with him, and that Ms. Hiester corroborated that conversation. See
N.T. Jury Trial, 5/24-28/99, at 791. The prosecutor reminded the jury of the
conversations Caltagirone had with Appellant on the evening of the robbery,
during which Appellant allegedly admitted his involvement and insisted that
the gun had simply gone off. Id. at 791. Again, he pointed out that those
conversations were corroborated by Ms. Hiester, and that they established
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Appellant was not at the party. Id. The Commonwealth recalled Jeff Gooch’s
testimony that Ms. Heister told him at the vigil service for George Clauser that
Appellant was the shooter. Id. at 790, 792. Much was made of the fact that,
three days after the robbery, again while Caltagirone was purportedly with
Ms. Hiester, Appellant allegedly admitted that he robbed Effie’s Pizza Villa, and
that he was the shooter. Id. at 792. The Commonwealth bolstered the
credibility of Melendez, a career criminal, by pointing out that his testimony
was corroborated by the testimony of Caltagirone and Ms. Hiester. Although
the defense attempted to impeach Caltagirone, the Commonwealth argued to
the jury: “The more the defense bangs away on John Caltagirone, the more
we are telling you, whose friend was he? Melvin Ortiz’[s].”4 Id. at 796.
Thus, Caltagirone’s testimony that Appellant confessed his involvement
to him, allegedly corroborated by Tina Hiester, was vital to the
Commonwealth’s case. Moreover, Appellant’s purported confessions lent
credence to the Commonwealth’s theory that Appellant’s alibi was a lie, and
that Appellant went to the birthday party early, left to rob the pizza shop at
about 7:30 p.m., and then returned to the party.
The after-discovered evidence offered by Ms. Hiester introduced the
notion that Caltagirone, the key prosecution witness, was one of the
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4 Although Caltagirone testified that he and Appellant were “good friends,”
Appellant stated that Caltagirone was merely an “acquaintance.” N.T. Jury
Trial, 5/24-28/99, at 256 and 486.
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perpetrators of the robbery and murder. Hence, Caltagirone had a reason to
divert attention from himself and implicate Appellant in the crime. There was
no fingerprint, ballistics, or DNA evidence. The robbers were not depicted on
video surveillance or identified by eyewitnesses. I submit that at a new trial,
Ms. Hiester’s testimony repudiating her trial testimony and implicating
Caltagirone in the robbery and murder would force the Commonwealth to
adopt a new theory of the case and trial strategy, even if Caltagirone and
Melendez were to offer testimony consistent with their testimony at the first
trial.
Appellant offered numerous alibi witnesses who placed him at a birthday
party at the time of the robbery. Additionally, the patron who witnessed the
robbery testified that he told the lead criminal investigator that he knew
Appellant and Appellant was not one of the two men he observed robbing the
pizza shop. Id. at 246-247. Ms. Hiester’s recantation testimony and
information linking Caltagirone to the robbery and murder, if credited by the
factfinder, leaves the Commonwealth with little evidence of Appellant’s guilt
but the suspect testimony of a jailhouse snitch and a photograph showing
Appellant at a birthday party the night of the robbery/murder wearing light-
colored khaki pants and a dark hooded sweatshirt. In my view, that would
not be enough to convict.
I believe Appellant’s judgment of sentence must be vacated and the
case remanded for a new trial. Hence, I dissent.
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