Commonwealth v. Perrin

DISSENTING OPINION BY

SHOGAN, J.:

I respectfully dissent.

I believe the Majority, in vacating the judgment of sentence on the basis of this Court’s decisions in Commonwealth v. Rivera, 939 A.2d 355 (Pa.Super.2007) and Commonwealth v. Castro, 55 A.3d 1242 (Pa.Super.2012) (en banc), ignores a crucial element of the four-prong test articulated by our Supreme Court in Commonwealth v. Chamberlain, 612 Pa. 107, 30 A.3d 381 (2011).

Specifically, our Supreme Court reiterated that:

After-discovered evidence is the basis for a new trial when it: 1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of trial by the exercise of reasonable diligence; 2) is not merely corroborative or cumulative; 3) will not be used solely for impeaching the credibility of a witness; and 4) is of such nature and character that a new verdict will likely result if a new trial is granted. *670Commonwealth v. Boyle, 533 Pa. 360, 625 A.3d [A.2d] 616, 622 (1993); Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988). Further, the proposed new evidence must be “producible and admissible.” Smith [518 Pa. at 50], 540 A.2d [at] 263; Commonwealth v. Scott, 503 Pa. 624, 470 A.2d 91, 93 (1983).

Chamberlain, 612 Pa. at 163-164, 30 A.3d at 414.

Here, Appellant has failed to demonstrate any other purpose served by Brown’s statement beyond the obvious impeachment of co-conspirator Perry’s earlier testimony, which had been extensively challenged at trial. Rather than direct where in his brief Appellant offers another use for Brown’s statement, the Majority relies on the exculpatory nature of the statement and the fact the statement reflects that Perry, who was not the sole identification witness, perjured himself at trial. The long-standing third element of the after-discovered evidence test should not be ignored.

As our Supreme Court has noted previously: “Recanting testimony is exceedingly unreliable!;] ... There is no less reliable form of proof, especially when it involves an admission of perjury.” Commonwealth v. Anderson, 466 Pa. 339, 342, 353 A.2d 384, 386 (1976) (internal quotation marks and citations omitted). The four-prong test, as applied to this type of recantation, has as its underpinning the notion that “[i]t is a matter of general knowledge that partners in crime are likely when apprehended to cast the chief blame on each other. It is also equally well known that partners in crime sometimes [do] tell the truth as to the commission of the crime.” Commonwealth ex rel. Estelle v. Cavell, 191 Pa.Super. 200, 156 A.2d 615, 618 (1960) (quoting Commonwealth v. Bubna, 357 Pa. 51, 53 A.2d 104, 112 (1947)). The third prong ensures that there is some basis, beyond impeachment, on which justice is served by a new trial. As an intended consequence, the third prong stands as an impediment to tactics employed by criminal cohorts to avoid conviction and rescue their partners in crime from the same.

Setting aside the question as to whether Brown’s hearsay within hearsay statement would be producible1 and admissible at trial, and thus result in a different verdict, I cannot conclude that Appellant has met his burden to demonstrate that the statement would be used for any other purpose than to further impeach Perry’s trial testimony. Therefore, I would affirm the judgment of sentence.

. Appellant concedes that he has not produced affidavits from Brown, coconspirator Perry, or Agent Majarowitz, establishing their "availability and willingness to cooperate with the defense.” Appellant’s Brief at 27 (quoting Commonwealth v," Khalil, 806 A.2d 415, 422 (Pa.Super.2002), Appeal denied, 572 Pa. 754, 818 A.2d 503 (20 03)). In fact, he concedes he has been unable to locate Brown or Perry. Id.