J-A19035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 STEVEN R. MILLER                        :
                                         :
                    Appellant            :   No. 1652 EDA 2018

                 Appeal from the Order Dated May 30, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0011715-2014


BEFORE:    PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                 FILED NOVEMBER 20, 2019

      Appellant, Steven R. Miller, appeals from the order entered by the Court

of Common Pleas of Philadelphia County denying his request for a new trial

based on after-discovered evidence. After careful review, we affirm.

      This Court has previously set forth the facts and procedural history of

the case, as follows:

      On October 6, 2013, Appellant, an inmate at Curran-Fromhold
      Correctional Facility in Philadelphia, was using a phone in the
      prison’s telephone bank. Khayree Murray, a fellow inmate,
      approached Appellant and asked to use one of the phones.
      Correctional Officers Denise Irving and Eddie Rosa and
      Correctional Sergeant Joyce Cooper observed Appellant attack
      Murray. Appellant stabbed Murray several times with “a sharp
      long screw rigged with sharp ridges and a rubber band wrapped
      in a ripped T-shirt” in the head, back, and ear. Officer Rosa
      immediately intervened, separated the two men with the help of
      Officer Irving, and used pepper spray to subdue Appellant.
      Officers recovered the makeshift weapon from the ground after
      Appellant dropped it. Officer Rosa testified that Murray was in
      shock and that he did not observe Murray strike Appellant.

____________________________________
* Former Justice specially assigned to the Superior Court.
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     Murray attempted to downplay his injuries, and told officers that
     he fell down some stairs. Murray sustained life-threatening
     injuries, which included three stab wounds to the back, two
     puncture wounds to the base of the neck, wounds to his back,
     back of the head, and left hand, and lacerations to his ear and
     cheek. Murray’s injuries required eight sutures. Sergeant Cooper
     decided to transport Murray to the hospital for treatment.
     Appellant had no injuries, but he was treated for pepper spray in
     his eyes and placed in solitary confinement.

     While walking with Officer Rosa through the prison shortly after
     the stabbing, Appellant stated, “If you didn’t pepper spray, you
     would have been the next victim.”[fn] Trial Court Opinion at 5. In
     recorded prison phone calls, Appellant subsequently made several
     inculpatory statements, boasted of his violent reputation in the
     prison as a result of the attack, and repeated a rumor that there
     was a bounty on Murray’s head because he was such a snitch.


           Fn. Officer Rosa omitted this statement from the
           official written report of the incident.


     Appellant proceeded to a jury trial. Murray refused to testify at
     trial and the trial court held him in contempt. Appellant testified
     and claimed that he acted in self-defense. Although Appellant
     claimed that Murray attacked him first with the weapon, Appellant
     admitted that he never feared that Murray would kill him.

     On June 25, 2015, the jury convicted Appellant of Aggravated
     Assault, Simple Assault, and PIC. On that same day, the trial
     court imposed an aggregate term of 8 to 20 years’ incarceration.
     Appellant filed a Post-Sentence Motion, which the trial court
     denied on October 2, 2015.

     Appellant filed a timely Notice of Appeal. Both Appellant and the
     trial court complied with Pa.R.A.P. 1925.

Commonwealth v. Miller, 172 A.3d 632, 638 (Pa.Super. 2017).

     On direct appeal, Appellant, through present counsel, raised eight

questions for this Court’s consideration. We deemed the first seven issues

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meritless and affirmed judgment of sentence on that basis, but we determined

remand was necessary to allow the trial court to consider the final issue, in

which Appellant raised an after-discovered evidence claim. Id., at 650-51.

Specifically, Appellant asserted that two inmates had written letters to his

attorney after his trial detailing their eyewitness observations of the prison

attack in question and identifying Appellant as the true non-aggressor and

victim who acted only in self-defense.       In deciding that remand was

appropriate, we explained:

     “A post-sentence motion for a new trial on the ground of after-
     discovered evidence must be filed in writing promptly after such
     discovery.” Pa.R.Crim.P. 720(C). The Comment to Rule 720
     explains that “after-discovered evidence discovered during the
     direct appeal process must be raised promptly during the direct
     appeal process, and should include a request for a remand to the
     trial judge[.]” Pa.R.Crim.P. 720, Comment.

     “To warrant relief, after-discovered evidence must meet a four-
     prong test: (1) the evidence could not have been obtained before
     the conclusion of the trial by reasonable diligence; (2) the
     evidence is not merely corroborative or cumulative; (3) the
     evidence will not be used solely for purposes of impeachment; and
     (4) the evidence is of such a nature and character that a different
     outcome is likely.” Commonwealth v. Rivera, 939 A.2d 355,
     359 (Pa.Super. 2007) (citation omitted).

     Appellant avers that while his claim was pending on appeal in this
     Court, Larry Williams sent Appellant's attorney a letter on August
     12, 2016, over a year after Appellant was sentenced, claiming that
     the victim “told him a few hours before the incident that he was
     going to stab [Appellant] because he didn't like what he did at the
     phones. [Williams] then observed the incident and saw [the
     victim] was the aggressor and [Appellant] was defending himself.”
     Appellant's Brief at 70.

     Appellant also avers that Tony Mason also sent Appellant's
     attorney a letter on August 20, 2016, indicating that he observed

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      the assault, saw the victim attack Appellant, and would have
      provided favorable testimony to Appellant at trial. Id. Appellant
      filed an Application for Remand on September 13, 2016, which
      this Court denied without prejudice to Appellant's raising the issue
      in his brief to this Court on appeal. Appellant has now done so
      and has reiterated his request for an evidentiary hearing. In its
      Brief, the Commonwealth does not oppose remand “for the sole
      and limited purpose of affording defendant the opportunity” to
      present his after-discovered evidence claim to the trial court.
      Commonwealth's Brief at 42. We agree.

      Based upon the information in the briefs and the certified record,
      we are constrained to remand to provide the trial court the
      opportunity to develop the record and to rule upon Appellant's
      after-discovered evidence claim in the first instance. See Rivera,
      supra, at 358–59.

Miller, 172 A.3d at 650–51.

      On May 23, 2018, the trial court conducted an evidentiary hearing

pursuant to this Court’s Opinion and order of remand. By its Order of May 30,

2018, the court denied Appellant’s Motion for New Trial Based Upon After-

Discovered Evidence “due to lack of merit.”           Trial Court Order and

Memorandum Opinion, 5/30/18, at 1. The court provided its reasoning, as

follows:

      Upon completion of the evidentiary hearing held on May 23, 2018,
      [the trial court] determined that the testimony offered by the
      defense witnesses Larry Williams and Arjuna (also known as Tony
      Mason), upon whom the Defendant’s Motion For New Trial was
      based, was so contradictory and incredible that this evidence
      could not, and would not, have been likely to rendered [sic] a
      different outcome at the original trial.

      Moreover, each of the proffered witnesses had been available to
      the Defendant well before the conclusion of the original trial. The
      claimed “after-discovered evidence” did not meet at least two
      prongs of the well-established four prong test that would have
      warranted a new trial. [Rivera, supra].


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      [The trial court] has specifically determined that the sworn
      testimony of witness Larry Williams and Arjuna (also known as
      Tony Mason), materially contradicted not only each other’s version
      of events at issue, but also the trial testimony of unbiased
      eyewitnesses and the Defendant’s own version of the attack
      elicited during his sworn testimony before the jury.

      It was easily apparent from the testimony presented at the
      evidentiary hearing that the claimed observations of these two
      “after discovered” witnesses Larry Williams and Arjuna Mason
      (also known as Tony Mason), of the aggravated assault of the
      victim Khayee Murray on October 6, 2013, had been materially
      false and concocted approximately three years after the subject
      attack while the Defendant and these two persons attended
      religious services while serving their respective custodial
      sentences at SCI Forrest. Each of these “witnesses” evidenced
      their bias and motivation to assist the Defendant because they
      viewed the sentence imposed upon the Defendant to be unfair.
      Each individual similarly evidenced that they had been connected
      to, or known to each other, or the Defendant, in some form or
      fashion, well before and well after the instant case was tried before
      the jury.

      For the reasons stated upon the record and within this instant
      memorandum which may be supplemented upon transcription of
      the record, it is the determination of this court that to reward this
      Defendant with the requested remedy of a new trial based upon
      the submitted “after-discovered” evidence would be tantamount
      to endorsing deception upon the court to avoid justice.

Trial Court Opinion, 5/30/18, at 1-2.

      Appellant has appealed timely from the trial court’s order, and he raises

the following five issues:

      1. Should a new trial be granted on the basis of after-discovered
         evidence on remand from the direct appeal of two critical
         prisoner/eyewitnesses who observed the events and would
         have confirmed the Appellant, Steven Miller’s, version and the
         fact the alleged victim had planned to attack Mr. Miller and was
         the aggressor, and that Mr. Miller acted in self-defense?



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      2. Was Judge Coyle’s conclusion that the witnesses were available
         before trial not supported by the record since neither witness
         came forward before trial to either trial counsel, Mr. Stretton,
         or to Mr. Miller, and they could not have been known to Mr.
         Stretton, or to Mr. Miller, and they could not have been known
         to Mr. Stretton or his investigator since they were incarcerated
         and Mr. Miller was placed in segregation after the incident?


      3. Was Judge Coyle’s finding that the witnesses were not credible
         not supported by the record, particularly since her conclusion
         that Mr. Miller and the two witnesses “concocted” this story at
         a prison religious service had no basis or support in the trial
         record?


      4. Did Judge Coyle ignore the standard on remand for after
         discovered evidence was a preponderance of the evidence?


      5. Did Mr. Miller meet the standard and was the evidence of such
         nature and character that a different result was likely?

Appellant’s brief, at 6-7.

      We review a trial court's decision to deny or grant a motion for new trial

based on after-discovered evidence for an abuse of discretion or error of law

that controlled the case. Commonwealth v. Lyons, 79 A.3d 1053, 1068

(Pa. 2013); Commonwealth v. Bonaccurso, 625 A.2d 1197, 1199

(Pa.Super. 1993). “Discretion is abused when the course pursued represents

not merely an error of judgment, but where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill will.” Commonwealth

v. Padillas, 997 A.2d 356, 361 (Pa.Super. 2010) (quoting Commonwealth

v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).         “If a trial court erred in its




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application of the law, an appellate court will correct the error.” Id. (quoting

Commonwealth v. Hernandez, 886 A.2d 231, 235 (Pa.Super. 2005)).

       A trial court may grant a post-sentence motion for a new trial based on

after-discovered evidence if the appellant shows by a preponderance of the

evidence that the after-discovered 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. Commonwealth v. Griffin,

137 A.3d 605, 608 (Pa.Super. 2016) (citing Commonwealth v. Castro, 93

A.3d 818, 821 n.7 (Pa. 2014) (citation omitted)). The test is conjunctive; an

appellant must show he has met each of these prongs to be entitled to a new

trial. Id.

       Appellant has not met every prong. We need not reach the questions

of whether Appellant has met each of the first three prongs, therefore, as we

conclude his evidentiary proffer failed to meet the fourth and final prong.

       The final prong tests whether the after-discovered evidence would have

likely changed the result. In undertaking the fourth prong review, a court

must assess whether the alleged after-discovered evidence is of such a nature

and character that it would likely compel a different verdict if a new trial is

granted. Padillas, 997 A.2d at 365.1

____________________________________________


1Appellant baldly claims the trial court ignored the fact that Appellant only
had the burden of proving by a preponderance of the evidence (more likely



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              In making that determination, a court should consider the
       integrity of the alleged after-discovered evidence, the motive of
       those offering the evidence, and the overall strength of the
       evidence supporting the conviction. [C]onflicting accounts are
       inherently unreliable and would not compel different verdict in
       new trial.     [C]ases that have addressed newly-discovered
       evidence have focused not simply on the credibility of the person
       offering the exculpatory evidence, but on the credibility or
       trustworthiness of the evidence itself, as well as the motive, or
       other impeaching characteristics, of those offering it.

Id. (citations omitted).

       Appellant claims the after-discovered eyewitness testimonies of Messers

Williams and Mason were of such a nature and character as to enable him to

make a fourth prong showing that it was more likely than not a different

verdict would obtain at a new trial with the aid of such testimonies, which he

calls "uncontroverted."       We disagree, as we find it was within the sound

discretion of the trial court to find the nature of the witnesses’ testimonies to

be unconvincing and of questionable plausibility within the context of the

existing record.

       Appellant dismisses the trial court's adverse credibility determinations

about Mr. Williams and Mr. Mason as mere speculation unsupported by

independent evidence. His dismissal, however, relies on nothing more than

his own willingness to find that the witnesses were, instead, entirely credible.

____________________________________________


than not) that the testimony would achieve a better result. Nothing in the
trial court's commentary during the evidentiary hearing or in its Memorandum
decision and Order supports this claim. The court consistently identifies the
governing four-prong test as the analytical touchstone in the present matter,
and specifically refers several times to the preponderance of the evidence
standard applying here.

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      For example, Appellant assails the trial court’s finding that the two

witnesses and he had the opportunity to formulate a plan to offer exculpatory

testimony when they met at religious meetings offered for inmates.

Appellant’s argument in support of this challenge, however, simply asks us to

accept both Mr. Williams' testimony that he did not remember speaking to the

others, and Mr. Miller's testimony that they spoke only briefly because very

little talking was permitted at the meetings.

      Appellant also points to the fact that his attorney received letters from

each of the two witnesses as additional proof that they acted independently

in speaking out on the case.     This position, too, embraces but one of two

possibilities, and Appellant fails to demonstrate an abuse of discretion when

the court reviewed the record as a whole and reasonably inferred the other

possibility was at play, namely, that the letter writing campaign was likely part

of a collaborative plan.

      In his brief, Appellant contends that Williams’ and Mason’s observations

of both the prelude to the assault and the assault itself were unique—and

neither cumulative nor corroborative to other evidence—in that both men

testified Murray, just moments before the altercation, announced his motive

and intention to attack Appellant. Appellant’s Brief at 65. Both Mr. Mason

and Mr. Williams testified they saw Murray initiate the assault and continue to

assault Appellant until the guards intervened. To the degree Appellant was

apparently able to wrest the makeshift knife from Mr. Murray and stab him

repeatedly, while incurring no real injury himself despite being the

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unsuspecting victim in the witnesses’ account, the witnesses stated Appellant

acted only in self-defense. Id.2

       For its part, the Commonwealth raises numerous concerns with the

trustworthiness of such testimonies. It questions, for example, the credibility

of Mr. Mason’s assertion that he had no idea that Appellant would have been

arrested for seriously injuring Mr. Murray with multiple stab wounds, whereas

____________________________________________


2 Appellant contrasts the witnesses’ purportedly consistent testimonies with
the inherently conflicted testimony of Officer Rosa, the only security guard
who claimed at trial to witness the altercation from its inception and identified
Appellant as the aggressor throughout. Appellant argues that Officer Rosa’s
testimony “was absolutely and totally inconsistent, contradictory, unreliable[,]
and speculative.” See Appellant’s Brief, at 46-47.

The jury disagreed with Appellant’s credibility assessment of Officer Rosa.
Indeed, there was no dispute at trial that the officer stood as the only
eyewitness to the altercation from its start, and the jury understood that his
testimony was, therefore, most central to its task of determining whether
Appellant acted criminally or in self-defense. Despite hearing extensive cross-
examination on Officer Rosa’s change in testimony with respect to which of
the two combatants was on the phone when the fight began, the jury clearly
credited his consistent testimony that he witnessed Appellant initiate violence
with the makeshift knife.

The trial court’s after-discovered evidence evaluation of the nature and quality
of the new testimonies involved placing such testimonies within the context of
the evidentiary record established at trial and considering whether they are
sufficiently credible and convincing to make it likely that a new trial would end
in a different verdict. See Padillas, 997 A.2d at 365; Rivera, 939 A.2d at
359. To the extent Appellant argues the court abused its discretion by failing
to deem Officer Rosa’s testimony wholly unreliable because it is at odds with
the after-discovered evidence, we disagree.              The jury’s credibility
determination carries weight in the trial court’s present analysis, particularly
where the after-discovered evidence consists simply of opposing eyewitness
testimony that fails to undermine Officer Rosa’s testimonial capacity in any
way.


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Appellant remained injury free, when Mason acknowledged that he witnessed

guards subdue Appellant and place him in their custody.        This testimony,

according to the Commonwealth, was designed purposely to meet the first-

prong burden of showing the testimony was not available for Appellant’s trial.

      When asked on cross-examination whether it was true that Appellant

had been his neighbor at his last place of residence, Mr. Mason answered that

he could not remember his last residence before going to prison. Yet, Mason

was able on direct examination to describe in detail the sequence of events

attendant to the assault. This was, again, in contrast to his inability at times

on cross-examination to answer questions regarding his observations of the

altercation, claiming in such instances that his view was obscured or that he

was returning to his cell in the pod.

      The Commonwealth also notes the fortuitous coincidence that two

inmates who happened to witness the CFCF Philadelphia assault in question

also happened to become inmates with Appellant at SCI Forest, attend the

same religious classes as Appellant, overhear Appellant discussing his case,

and express to him their mutual surprise at his conviction and their willingness

to give exculpatory testimony on his behalf. In that regard, Mr. Mason had

no substantive answer to questions asking how he and Williams, who claimed

to know each other well, could not have known each had witnessed the brutal

assault while purportedly standing about 25 feet from one another, could

never have discussed the incident afterward, and could have come to know of




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this great coincidence only upon meeting Appellant at a time when he was

challenging his judgment of sentence.

      The Commonwealth also pointed to other inconsistencies implicating the

credibility of the witnesses’ testimonies. For example, Mr. Mason claimed he

and Mr. Murray had a private conversation near a water fountain just before

Murray approached Appellant, but Mr. Williams claims he overheard from

about “two car lengths away” Mr. Murray’s stated intentions of harming Miller.

The witnesses also provided varied accounts regarding the details of their talks

with Appellant.

      On balance, and in consideration of the governing standard, this record

leads us to share the trial court’s opinion that the after-discovered testimonies

were of an unpersuasive nature, as they suffered from several implausibilities

and otherwise failed to undermine directly Officer Rosa’s established credibility

at trial.   For these reasons, we conclude that Appellant’s after-discovered

evidence claim fails under a fourth prong analysis, to the demise of his request

for a new trial.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/19


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