J-A02007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JOSE LOUIS NEGRON

                                                      No. 1165 MDA 2015


                  Appeal from the Order Entered June 8, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003826-2014


BEFORE: PANELLA, J., STABILE, J., and FITZGERALD, J.*

CONCURRING STATEMENT BY PANELLA, J.                FILED JANUARY 04, 2017

        I join in the Majority’s admonishment of the Commonwealth’s agents

in this matter. Furthermore, I also conclude that Negron is not entitled to a

new trial. However, my reasoning differs from the Majority’s. I therefore

concur.

        The Majority finds that Negron failed to establish that the murder

identified by the CS was the same with which Negron had been charged.

However, this Court reviews the decision of a trial court to grant a new trial

on the basis of after-discovered evidence to determine if the court

committed an abuse of discretion or an error of law which controlled the

outcome of the case. See Commonwealth v. Padillas, 997 A.2d 356, 361
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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(Pa. Super. 2010). Here, the trial court found that it was “more likely than

not that CS was referring to this incident.” Trial Court Opinion, 9/2/15, at 6.

I can discern no abuse of discretion in this finding, given the circumstances

as set forth by the Majority at pages 7-8.

      However, I conclude that Negron did not establish that he was

prejudiced by the Commonwealth’s obstruction. “A Brady violation is

established by showing that the favorable evidence could reasonably be

taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Commonwealth v. Chmiel, 30 A.3d 1111, 1130

(Pa. 2011) (citation omitted). I reach this conclusion based upon a review of

the testimony at trial, which reveals that investigator Driesbach’s testimony

was not of prime importance. During direct examination, investigator

Driesbach did not offer any independent evidence of Negron’s guilt.

      To the contrary, the Commonwealth’s case was largely dependent on

the testimony of eyewitnesses to the murder and the testimony of Negron’s

neighbor. See, e.g., N.T, Trial, 1/12-15/15, at 216-217, 239-240, 292-295.

These witnesses placed Negron at the murder, involved in a fight with the

victim, and in possession of a firearm. Furthermore, these witnesses testified

that Negron fled the scene of the crime while acknowledging to his girlfriend

that he had done what he “needed to do.” It was clearly this testimony that

the jury believed in convicting Negron.




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      As a result, I conclude that Negron failed to undermine confidence in

the verdict. I would therefore reverse the trial court’s order granting a new

trial on this basis.




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