J-S48037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ARTHUR FRANCES NICHOLL, JR.,

                            Appellant                         No. 241 MDA 2017


          Appeal from the Judgment of Sentence November 16, 2016
               in the Court of Common Pleas of Franklin County
              Criminal Division at No.: CP-28-CR-0000311-2016

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED SEPTEMBER 19, 2017

        Appellant, Arthur Frances Nicholl, Jr., appeals from the judgment of

sentence imposed following his jury trial conviction for robbery, conspiracy

to    commit    robbery,    theft   by   unlawful   taking,    and   simple   assault.1

Specifically, he challenges the trial court’s denial of his motion for a new trial

based on after discovered evidence. We affirm.

        We take the factual and procedural history in this matter from the trial

court’s March 2, 2017 opinion, and our review of the certified record.

        On October 17, 2016 and October 18, 2016, a jury trial was held
        in which [Appellant] and his co-defendant, Jacob S. Ochoa, were
        tried jointly on the charges. At trial, Mr. Ochoa exercised his
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  See 18 Pa.C.S.A. §§ 3701(a)(1)(v), 903, 3921(a), and 2701(a)(1),
respectively.
J-S48037-17


       right to remain silent, and chose not to testify. On October 18,
       2016, a jury found [Appellant] guilty of all counts. On November
       16, 2016, [the trial court] imposed the following sentences on
       [Appellant]: [not less than eighteen nor more than sixty months
       of imprisonment for robbery and a consecutive sentence of not
       less than eighteen nor more than sixty months of imprisonment
       for conspiracy to commit robbery.]

             Mr. Ochoa was also sentenced by [the trial court]. At his
       sentencing hearing, Mr. Ochoa admitted guilt and took full
       responsibility for the robbery, stating that [Appellant] took no
       part in the robbery.      Mr. Ochoa also stated that another
       conspirator, who he declined to identi[f]y, was present during
       the robbery, but that [Appellant] was not that conspirator.

            On November 28, 2016, [Appellant] filed an optional post-
       sentence motion pursuant to Pa.R.Crim.P. 720(B). A hearing on
       the post-sentence motion was held before [the trial court] on
       December 27, 2016. . . .

(Trial Court Opinion, 3/02/17, at 2-3) (some capitalization omitted).

       On January 30, 2017, the trial court denied Appellant’s post-sentence

motion, concluding that Appellant failed to meet the elements of the four-

prong after-discovered evidence test. (See id. at 3-5). This timely appeal

followed.2

       Appellant raises one issue on appeal.

       1. Did the trial court err and abuse its discretion when it denied
       Appellant’s Post-Sentence Motion for a New Trial on the basis of
       after-discovered exculpatory evidence that could not have been
       obtained by Appellant prior to conclusion of the trial?

____________________________________________


2
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on February 22, 2017. See
Pa.R.A.P. 1925(b). The trial court entered an order on March 2, 2017
stating that it’s January 30, 2017 order and opinion thoroughly addressed
Appellant’s issue. See Pa.R.A.P. 1925(a).



                                           -2-
J-S48037-17



(Appellant’s Brief, at 10).

      Our standard of review for a trial court’s denial of a motion for a new

trial is well settled.

            We will reverse a trial court’s decision to deny a motion for
      a new trial only if the trial court abused its discretion. . . . An
      abuse of discretion exists when the trial court has rendered a
      judgment that is manifestly unreasonable, arbitrary, or
      capricious, has failed to apply the law, or was motivated by
      partiality, prejudice, bias, or ill will.

Gbur v. Golio, 932 A.2d 203, 206–07 (Pa. Super. 2007), affirmed, 963 A.2d

443 (Pa. 2009) (citations and quotation marks omitted).

      Appellant contends that the trial court erred and he is entitled to a new

trial because Mr. Ochoa’s statements meet all four prongs of the after-

discovered evidence test. (See Appellant’s Brief, at 15-20). We disagree.

            To obtain relief based on after-discovered evidence,
      appellant must demonstrate 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. [See] Commonwealth v.
      Randolph, 582 Pa. 576, 873 A.2d 1277, 1283 (2005);
      Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541,
      545 (1995). . . .

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008), cert denied, 555

U.S. 1198 (2009); see Commonwealth v. Solano, 129 A.3d 1156, 1180

(Pa. 2015) (“As this test is conjunctive, failure to establish one prong

obviates the need to analyze the remaining ones.”) (citation omitted).




                                     -3-
J-S48037-17



         Here, the trial court conceded that Mr. Ochoa’s statement would meet

the first two prongs of the four-prong test; however, the court concluded

that it did not satisfy the third or fourth requirements. (See Trial Ct. Op., at

4-5).     With regard to the third prong, the court reasoned, “Mr. Ochoa’s

acceptance of responsibility at sentencing and absolution of [Appellant]

would absolutely be used to impeach the credibility of three witnesses,

including a third co-defendant, the victim, and a neighbor.” (Id. at 5).

         Furthermore, the court stated that, with regard to the fourth prong, it

was

         . . . not persuaded that the admittance of Mr. Ochoa’s statement
         would likely result in a different verdict if a new trial were
         granted. Given Mr. Ochoa’s initial denial of involvement to the
         police, his late statement accepting full responsibility for the
         crimes committed is suspect, due in significant part to its self-
         serving nature. Moreover, while Mr. Ochoa absolved [Appellant]
         of any responsibility for the underlying crimes, he did state that
         he was assisted by another individual in his perpetration of those
         crimes. Mr. Ochoa’s failure to thereafter identify this accomplice
         renders the sincerity of Mr. Ochoa’s statements questionable at
         best.     Furthermore, upon consideration of the eyewitness
         testimony, the testimony of a third co-defendant, and the
         neighbor, the likelihood of a different verdict in the event of a
         new trial is made even more unlikely.

(Id.).     Therefore, the court concluded that Appellant failed to meet the

elements of the after-discovered evidence test and, consequently, denied his

post-sentence motion for a new trial. (See id.).

         Upon review, we conclude that the trial court did not abuse its

discretion in denying Appellant’s motion for a new trial where Appellant

failed to prove that Mr. Ochoa’s statement was not going to be used as


                                       -4-
J-S48037-17



impeachment evidence and that his statement would likely result in a

different verdict.   See Pagan, supra at 292; Gbur, supra at 206-07.

Appellant’s issue does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




                                      -5-
