J-S14034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONTEZ PERRIN                              :
                                               :
                       Appellant               :   No. 11 EDA 2018

                    Appeal from the Order December 12, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003284-2008


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                            FILED APRIL 23, 2019

       Dontez Perrin (Perrin) appeals from the December 12, 2017 order of the

Court of Common Pleas of Philadelphia (trial court) denying his motion for a

new trial.1 For the following reasons, we vacate and remand.

       We take the following pertinent facts and procedural history from our

review of the certified record. At trial, Lynwood Perry (Perry) testified that

he, Perrin and Amir Jackson (Jackson) robbed the victim, Rodney Thompson

(Thompson). Perry admitted that he was testifying for the Commonwealth

pursuant to a deal with the federal government that he would receive a lighter


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1 The court incorrectly identified its order as being under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. However, as explained above,
this was an order denying a timely filed motion during his direct appeal
pursuant to Pennsylvania Rule of Criminal Procedure 720(C).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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sentence for federal charges arising from this and other robberies in which he

participated if he cooperated with the prosecution. Thompson also testified,

stating that he knew Perry and Jackson prior to the robbery, but he gave

conflicting descriptions of the third attacker and failed to identify Perrin

consistently. On September 13, 2010, a jury convicted Perrin of Aggravated

Assault, 18 Pa.C.S. § 2702(a); Robbery, 18 Pa.C.S. § 3701(a); and related

crimes.2    The trial court sentenced him on November 10, 2010, to an

aggregate term of incarceration of not less than five nor more than ten years.

       Perrin appealed nunc pro tunc on April 29, 2011. On June 6, 2011, while

his appeal was pending, the District Attorney’s Office forwarded a letter from

the FBI to Perrin’s counsel. The document contained FBI Special Agent Joseph

Majarowitz’s summary of a May 9, 2011 interview with Curtis Brown (Brown),

Perry’s prison cellmate. Brown said that when Perry talked about testifying in

Perrin’s case, he indicated that he testified that Perrin was involved because

“someone had to ‘go down’ for it,” but that actually he was not guilty. (FBI

Form FD-302, 5/18/11).



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2  Specifically, in addition to Aggravated Assault and Robbery, the jury
convicted him of Recklessly Endangering Another Person, Criminal Conspiracy,
Possession of an Instrument of Crime, Firearms not to be Carried Without a
License, Possession of a Firearm by a Minor, and Receiving Stolen Property,
pursuant to 18 Pa.C.S. §§ 2705, 903(a)(1), 907(a), 6106(a)(1), 6110.1(c),
and 3925(a), respectively.




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        Based on the letter, Perrin petitioned this Court, seeking either to

remand the case for a new trial or to enable him to pursue an after-discovered

evidence petition with the trial court.3         This Court granted the petition for

remand on January 12, 2013, and our Supreme Court vacated that decision

and     remanded     for   our    reconsideration    in   light   of   its   holding   in

Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014).4 On reconsideration,

we found that Castro did not affect our disposition because “[Perrin’s] petition

for remand clearly state[d] that, if granted an evidentiary hearing, he [would]

call [] Perry and [] Brown, as well as FBI Special Agent [] Majarowitz, as

witnesses to offer exculpatory evidence that establish[es] that a different


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3   Pursuant to the comment to Pennsylvania Rule of Criminal Procedure 720:

        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 its discovery. Accordingly,
        after-discovered evidence discovered during the post-sentence
        stage must be raised promptly with the trial judge at the post-
        sentence stage; 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; and after-discovered evidence discovered after
        completion of the direct appeal process should be raised in the
        context of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii) and (b)(2).

Pa.R.Crim.P. 720(C), Comment.

4 The Castro Court held that “a [Rule 720] motion must, at the very least,
describe the evidence that will be presented at the hearing. Simply relying on
conclusory accusations made by another, without more, is insufficient to
warrant a hearing.” Castro, supra at 598 (footnote omitted).


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result would obtain if [he was] granted a new trial.” (Commonwealth v.

Perrin, 108 A.3d 50, 54 (Pa. Super. 2015)). Therefore, we again remanded

to the trial court for it to conduct an evidentiary hearing to allow Perrin to

present this after-discovered evidence to enable the trial court to determine

whether it warranted a new trial.

       In order to obtain relief on after-discovered evidence, Perrin was

required to establish at the hearing, by a preponderance of the evidence, 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. Montalvo, 986 A.2d 84, 109 (Pa. 2009), cert. denied,

562 U.S. 857 (2010) (citation omitted; emphasis added).5

       At the evidentiary hearing, Perrin presented the testimony of Special

Agent Majarowitz and Brown, but not Perry. Special Agent Majarowitz testified

that Brown was a cooperating witness against his co-defendants who

committed armed robberies of Philadelphia area pharmacies. He testified that

in an interview prior to trial, Brown told him that Perry, his cellmate, stated



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5 “Recantation testimony is one of the least reliable forms of proof, particularly
when it constitutes an admission of perjury.” Commonwealth v. Padillas,
997 A.2d 356, 366 (Pa. Super. 2010), appeal denied, 14 A.3d 826 (Pa. 2010).
(citation and internal quotation marks omitted).


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that he lied about Perrin's involvement in the robbery for which he was

convicted. Special Agent Majarowitz passed this information along to an FBI

agent and federal prosecutor. He also stated that Brown did not receive any

additional benefit at his own sentencing for the information about Perry.

      Brown testified at the hearing that he did not know Perrin but was

cellmates with Perry for about two months at the Federal Detention Center in

Philadelphia. He testified that Perry told him that he lied on the stand about

Perrin’s involvement because he was hoping to get a more lenient sentence.

Brown testified that he only told Special Agent Majarowitz about Perry because

he felt it was the right thing to do, not because he believed that he had to do

so to get sentencing consideration in his case.

      The trial court denied Perrin’s motion for a new trial, explaining that,

because Perrin failed to present Perry to testify that he had lied on the stand,

the testimony of Brown and Special Agent Majarowitz was hearsay that Perrin

only could use to impeach Perry’s credibility, a purpose prohibited by

Pennsylvania precedent. (See N.T. Hearing, 8/25/17, at 6-52; N.T. Hearing,

11/02/17, at 31; Order, 12/12/17). The trial court also stated that “[it was]

unable to find that [Perrin] has been able to get through the four prong test

as [he is] without the appearance of . . . Perry where [he] would have to . . .

either admit that he lied, either go through cross-examination, some

explanation, or somehow deny that . . . Brown ever heard what he said that

he heard.” (N.T. Hearing, 11/02/17, at 31; see also N.T. Hearing, 12/12/17,


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at 4 (trial court explaining that “[it] had no authority to make a finding that

Mr. Perrin should prevail on the petition” because Perry did not testify at the

hearing)). Perrin timely appealed.6, 7

       Perrin contends that the trial court erred in finding that, to meet the

standard for after-discovered evidence, Perry would have to testify.      Even

though Perry did not testify, he contends that he is entitled to a new trial

because, although Brown’s proffered testimony is hearsay, it is admissible

evidence for the truth of the matter asserted, i.e., that Perry stated that he

lied in his testimony implicating Perrin. See Pa.R.E. 801(c). Because Perrin

contends that is admissible evidence, he maintains that if the trial court finds

Brown’s testimony to be credible, he has established that he is entitled to a

new trial.




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6 Our standard of a review of this matter is for an abuse of discretion. See
Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995) (“[A]n
appellate court may not interfere with the denial or granting of a new trial
where the sole ground is the alleged recantation of state witnesses unless
there has been a clear abuse of discretion.”) (citation and internal quotation
marks omitted).

7 On May 22, 2018, this Court received a letter from the trial court advising
that the trial judge is no longer with the court, but that we could find the
reasons for his decision in the transcripts from the November 2 and December
12, 2017 hearings. Not only do we not have the benefit of the trial court
opinion, the Commonwealth has not filed a brief in this matter in spite of
receiving three extensions of time within which to do so.

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      The question then is whether Brown’s testimony is admissible hearsay

under Pennsylvania Rule of Evidence 804(b).          In relevant part, the Rule

provides:

      (b) The Exceptions. The following are not excluded by the rule
      against hearsay if the declarant is unavailable as a witness:

                                   *    *     *

            (3) Statement Against Interest. A statement that:

            (A) a reasonable person in the declarant’s position
            would have made only if the person believed it to be
            true because, when made, it was so contrary to the
            declarant’s proprietary or pecuniary interest or had so
            great a tendency to invalidate the declarant’s claim
            against someone else or to expose the declarant to
            civil or criminal liability; and

            (B) is supported by corroborating circumstances
            that clearly indicate its trustworthiness, if it is offered
            in a criminal case as one that tends to expose the
            declarant to criminal liability. (Emphasis added.)

Pa.R.E. 804(b)(3).

      Based on the foregoing, Perry’s statement to Brown certainly would be

a statement against interest that could be introduced for the truth of the

matter asserted. It would expose him to criminal liability for perjury, and the

context in which it was made would lead a reasonable person to believe that

the statement would not have been made if it were not true.                See

Commonwealth v. Brown, 52 A.3d 1139, 1181-82 (Pa. 2012). However,

this statement would only be admissible if Perry was “unavailable” to testify.




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      Regarding the unavailability of a witness, Pennsylvania Rule of Evidence

804 provides, in pertinent part, as follows:

      (a) Criteria for Being Unavailable. A declarant is considered to
      be unavailable as a witness if the declarant:

         (1)    is exempted from testifying about the
         subject matter of the declarant’s statement because
         the court rules that a privilege applies;

         (2)      refuses to testify about the subject matter despite
         a court order to do so;

                                  *    *       *

         (5)     is absent from the trial or hearing and the
         statement’s proponent has not been able, by process or
         other reasonable means, to procure:

           (A) the declarant’s attendance, in the case of a hearsay
         exception under Rule 804(b)(1) or (6); or

            (B) the declarant’s attendance or testimony, in the case
         of a hearsay exception under Rule 804(b)(2), (3), or (4).

Pa.R.E. 804(a)(1), (2), (5) (emphasis added).

      In this case, Perry refused to go to the video screen in the prison to

testify at the hearing on Perrin’s motion for a new trial. Even though Perrin

failed to subpoena Perry or request a court order for him to testify, the

certified record reflects that both Perrin and the Commonwealth made ongoing

attempts to secure his testimony and arranged for him to testify from prison

by video. (See, e.g., Docket Entry, 4/16/15 (granting continuance to allow

Commonwealth to bring witness from federal custody); Docket Entry, 1/18/17




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(assigning case to trial judge and observing Commonwealth needs witness via

video)).

      Based on our review of the record, we conclude that Perrin was unable

to procure Perry’s attendance through “reasonable means,” and Perry was

“unavailable” within the meaning of Pa.R.E. 804. See Commonwealth v.

Nelson,    652   A.2d   396,   398   (Pa.   Super.   1995)   (holding   that   the

Commonwealth made a good faith effort to produce live testimony where it

called and questioned a witness who “steadfastly refused to answer any

questions or to read any prior statements to refresh his recollection”);

Commonwealth v. Melson, 637 A.2d 633, 637 (Pa. Super. 1994) (stating

that “[t]he test for availability under the Sixth Amendment is broad: a witness

is unavailable if the prosecution has made a good faith effort to introduce its

evidence through the live testimony of the witness and, through no fault of its

own, is prevented from doing so”) (citation omitted).

      Therefore, we vacate the court’s order denying Perrin’s motion for a new

trial and remand for the determination of whether Brown’s testimony was

credible so as to justify a new trial. We note that the original trial court judge

who decided Perrin’s claim is no longer sitting. Hence, on remand, we direct

the jurist appointed to handle this matter to hold a hearing at which Perrin

shall present his witnesses again so that the trial court need not rely on a cold

record to make its credibility determinations.        See Commonwealth v.

Sharaif, ___ A.3d ___, 2019 WL 1088565, at *3 (Pa. Super. Mar. 8, 2019)


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(remanding for a new suppression hearing where the trial judge failed to make

appropriate findings of fact and conclusions of law and the trial judge was no

longer on the bench).

     Order Vacated. Case Remanded. Jurisdiction Relinquished.

     Judge Lazarus joins the memorandum.

     Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/19




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