J-S71040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

MICHAEL DUANE FERGUSON

                          Appellant                       No. 853 WDA 2015


          Appeal from the Judgment of Sentence February 24, 2015
             In the Court of Common Pleas of Crawford County
            Criminal Division at No(s): CP-20-CR-0000761-2012
                                 CR 874-2012

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COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

MICHAEL DUANE FERGUSON

                          Appellant                       No. 854 WDA 2015


          Appeal from the Judgment of Sentence February 24, 2015
             In the Court of Common Pleas of Crawford County
            Criminal Division at No(s): CP-20-CR-0000874-2012



BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                FILED JANUARY 08, 2016
J-S71040-15



        Michael Duane Ferguson appeals from the judgment of sentence

imposed on him on February 24, 2015, following his conviction by jury on

charges of simple assault1 and 42 counts of a variety of charges related to

three shotgun robberies of saloons.2 Charges related to the armed robberies

included conspiracy, robbery, theft and possession of a firearm.3 Ferguson

received an aggregate sentence of 34 to 71 years’ incarceration.       In this

timely appeal, Ferguson claims the trial court erred in denying his post-

sentence motion for a new trial based upon a claim of newly discovered

evidence.    After a thorough review of the submissions by the parties, the

certified record, and relevant law, we affirm.

        The procedural history of this matter is uncommon.          After his

conviction, Ferguson filed a direct appeal claiming the simple assault charges

should not have been tried with the robbery charges; the jury failed to

properly deliberate, finding him guilty on all 43 counts in slightly more than

one hour; and the verdicts were against the weight of the evidence. A panel

of our Court denied Ferguson relief on the issues raised, but vacated the

____________________________________________


1
    18 Pa.C.S. § 2701(a)(1).
2
  This was a consolidated trial. The simple assault charges arose from an
incident in jail when Ferguson assaulted his co-conspirator, who had agreed
to testify against Ferguson.
3
   18 Pa.C.S. §§ 903, 3701(a)(1)(ii), 3921(a), and 6105(a)(1), respectively.
Because the specific charges are not at issue, we will not relate the entire
list.



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sentence and remanded for resentencing based upon sua sponte recognition

that Ferguson’s sentence was illegal based upon the imposition of a

mandatory minimum sentence in violation of Alleyne v. United States, 133

S.Ct. 2151 (2013). See Commonwealth v. Ferguson, 107 A.3d 206 (Pa.

Super. 2015). Ferguson was resentenced on February 24, 2015, as noted

above.    Following imposition of the new sentence, Ferguson filed a post-

sentence motion claiming his sentence was excessive, counsel rendered

ineffective assistance, and that he was entitled to a new trial based upon

after discovered evidence.        The trial court declined to address Ferguson’s

claims of ineffective assistance of counsel, leaving such claims for a Post

Conviction Relief Act petition and review.       The trial court denied Ferguson

relief on his other claims.4       Ferguson filed this timely appeal claiming the

trial court erred in dismissing his claim for a new trial based upon newly

discovered evidence.5

       Our standard of review for this matter is as follows: “Unless the trial

court has clearly abused its discretion in denying a new trial on the basis of

after-discovered evidence, its order will not be disturbed on appeal.”
____________________________________________


4
  There was apparently oral argument held on the issue of newly discovered
evidence. However, the date of that argument is not of record nor are there
any transcripts from that argument. Prior to oral argument, Ferguson also
sought funds to hire an expert to enhance the video. That request was
denied.
5
 Ferguson filed a Pa.R.A.P. 1925(b) Statement of Errors Complained of on
Appeal, even though he was not ordered to do so.



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Commonwealth v. Cull, 685 A.2d 1191, 1198 (Pa. Super. 1997) (citation

omitted).

     In order to prevail on a motion for new trial based upon newly

discovered evidence, the claimant must meet a four-prong test.

     The four-prong test for awarding a new trial because of after-
     discovered evidence is well settled. The evidence: (1) could not
     have been obtained prior to trial by exercising reasonable
     diligence; (2) is not merely corroborative or cumulative; (3) will
     not be used solely to impeach a witness's credibility; and (4)
     would likely result in a different verdict. See Commonwealth v.
     Pagan, 597 A.2d 69, 950 A.2d 270, 292 (2008).

Commonwealth v. Castro, 93 A.3d 818, 821, n.7 (Pa. 2014).

     Here, Ferguson argues the newly discovered evidence was a video

recording of one of the armed robberies in which the perpetrator is an

African-American male, with no visible tattoos on his arm. Ferguson argues

he has a full sleeve of tattoos, and therefore, he cannot be the person in the

video. Ferguson claims he did not see the video and realize that he was not

the depicted person until after he obtained new counsel for resentencing.

     The trial court noted a fatal flaw in Ferguson’s argument.           In its

memorandum and order denying Ferguson’s post-sentence motion, the trial

court stated:

     At the time of oral argument in this matter [Ferguson’s] counsel
     indicated that claim [of newly discovered evidence] is based on
     the fact that a video recording of the alleged perpetrator in one
     of the robberies shows an African American man without tattoos
     and [Ferguson] has several tattoos on his arm, which he alleges
     would have been there at the time the video was taken. His
     counsel concedes that [Ferguson] and his trial counsel received
     the video in question as part of discovery prior to trial and in

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      fact, while not specifically conceded by [Ferguson], it was shown
      to the jury as part of the evidence at the time of trial.

      Essentially, [Ferguson] argues that the evidence is after-
      discovered evidence because he did not notice that there were
      no tattoos on the gentleman in the video until after the trial had
      been completed.
                                      ***
      Here, obviously the video is not after-discovered evidence. It
      was in the hands of [Ferguson] and his counsel prior to trial and
      was shown at trial. Therefore, he does not even meet the first
      factor and therefore it is not necessary to discuss the remaining
      three.

Trial Court Opinion, 4/29/15, at 2.

      We can find no abuse of discretion in the trial court’s determination

that the video recording did not meet the first prong of the four-prong test

and, therefore, Ferguson was not entitled to relief.

      Finally, we address the Commonwealth’s position that this issue was

not properly raised in a direct appeal, and should be reserved for PCRA

consideration.   Pa.R.Crim.P. 720(C) clearly requires a defendant raise a

claim of after-discovered evidence in writing promptly after discovery. The

comments to Rule 720 specifically note:

      Unlike ineffective counsel claims, which are the subject of
      Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002),
      paragraph (C) requires that any claim of after-discovered
      evidence must be raised promptly after discovery. Accordingly,
      after-discovered evidence discovered during the post-sentence
      stage must be raised promptly with the trial judge at the post-
      sentence stage…

Pa.R.Crim.P. 702, Comment, Miscellaneous.




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      Because Ferguson claimed he did not view the video recording until

this matter had been remanded, Ferguson’s after-discovered evidence claim

was, therefore, properly raised.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/2016




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