J-S69011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ERIC EUGENE SMALL,

                            Appellee                  No. 245 MDA 2016


                 Appeal from the PCRA Order January 19, 2016
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0001458-2011


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

MEMORANDUM BY PLATT, J.:                              FILED APRIL 21, 2017

        The Commonwealth appeals from the order granting the petitioner,

Eric Eugene Small (Appellee), a new trial pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–9546, based on a claim of after-

discovered evidence. We conclude from the record that the “new” evidence,

a hearsay report of a purported confession naming someone else as the

shooter, is merely cumulative of similar testimony already given at trial.

Moreover, Appellee presents no persuasive evidence or argument that the

cumulative testimony would compel a different verdict at any re-trial.

Accordingly, we reverse and remand.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S69011-16


       On August 9, 2012, a jury convicted Appellee of murder of the first

degree, 18 Pa.C.S.A. § 2502(a), and firearms not to be carried without a

license, 18 Pa.C.S.A. § 6106(a)(1).1

       Appellee was convicted for the shooting death of William Price outside

of the Club Egypt in Harrisburg, Pennsylvania on March 7, 2011. A few days

before the fatal shooting, at another club (the Rebound Club), Price got into

a shoving match with Kenosha Tyson, including his pulling her hair. (See

N.T. Trial, 8/07/12, at 126-128; see also N.T. PCRA Hearing, 5/12/15, at

5).   At trial, Ms. Tyson testified that she had been the girlfriend of Pedro

Espada; he was the father of two of her children.2 (See N.T. Trial, 8/07/12,

at 120, 131).      There was testimony that Appellee was good friends with

Espada, and that they considered themselves to be like brothers. (See id.

at 169, 192-93; 8/08/12, at 125-26). Neither Appellee nor Espada was at

the Rebound Club that night. (See id. 8/07/12, at 129).

       On the night of the shooting, Price, Espada, and Appellee were all at

the Club Egypt.       Three witnesses testified for the Commonwealth that at

closing time they saw Appellee leaving the club, walking beside the victim,

Price, with his (Appellee’s) arm around him, shortly before Price was fatally
____________________________________________


1
  The Commonwealth initially charged, but later nolle prossed, a count for
persons not to possess a firearm, 18 Pa.C.S.A. § 6105(a)(1).
2
  Although Ms. Tyson testified at trial that she was no longer Espada’s
girlfriend, at the PCRA hearing she testified that she was again pregnant
with his child. (See N.T. PCRA Hearing, 5/12/15, at 55).



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shot in the face. (See trial testimony of Shamar Evans, id. 8/07/12, at 205-

208; Andre Knight, id. 8/08/12, at 52-59; Ali Williams, id. at 85).

       The    Commonwealth         tried       Appellee   for   killing   Price.   “The

Commonwealth specifically contended that [Appellee] shot Mr. Price because

of his allegiance to Mr. Espada, and sought retribution for the assault on Mr.

Espada’s children’s mother, Ms. Tyson.             Throughout the trial, the defense

theory was that Mr. Espada was actually [the] individual who shot Mr. Price,

not [Appellee].” (PCRA Court Opinion, 1/19/16, at 4).

       The Commonwealth correctly observes that proof of motive is not

necessary for a conviction of first degree murder.              (See Commonwealth’s

Reply Brief, at 1); see also Commonwealth v. Briggs, 12 A.3d 291, 340

n.44 (Pa. 2011), cert. denied, 565 U.S. 889 (2011).3 Nonetheless, the jury

was free to infer from the evidence presented that Appellee shot Price to

avenge the assault on Tyson, out of allegiance to Espada, as contended by


____________________________________________


3
   Motive may, however, be probative of intent to kill if the evidence
establishes a motive to kill. See Commonwealth v. Tomoney, 412 A.2d
531, 535 (Pa. 1980) (superseded by statute on another ground) (testimony
indicated accused had desire to retaliate for earlier killing); Commonwealth
v. Robinson, 364 A.2d 665, 669 (Pa. 1976) (jury could reasonably have
inferred that defendant intended to vent malice toward estranged wife and
her employer); Commonwealth v. Zimmerman, 504 A.2d 1329, 1335 (Pa.
Super. 1986) (Commonwealth could properly argue from evidence that
sexual desire was motive in first degree murder, even though sex crime was
not charged).




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the Commonwealth, or that Appellee acted in concert with Espada.         (See

PCRA Ct. Op., at 4).

       Eyewitnesses saw Espada walking near Price and Appellee shortly

before the shooting. After Price was shot, witnesses saw Espada fire several

shots, possibly to scare away anyone who might want to come closer, or to

assist the victim. Shortly after the shooting, both Espada and Appellee were

seen running away toward the riverfront. Some testimony suggested that

they went to the waterfront area to hide the murder weapon.

       At the PCRA hearing, trial counsel testified that the defense theory of

the case was that Espada shot Price himself in retaliation for the harassment

of Tyson.     (See N.T. PCRA Hearing, 5/12/15, at 5-6).      Other witnesses

supported this theory. At trial, Deleon Dotson, a reluctant Commonwealth

witness, testified on cross-examination that Espada told him that he

(Espada) shot Price, from a distance of three to five feet away. (See N.T.

Trial, 8/08/12, at 135).4

____________________________________________


4
  Other testimony cast doubt on the three-to-five feet shooting scenario.
Wayne Ross, M.D., the forensic pathologist who performed the autopsy,
testified that Price received a pressed contact gunshot wound; the bullet
entered Price’s face on the left near his eye and exited on the right. (See
N.T. Trial, 8/07/12, at 22). Dr. Ross testified that he observed soot around
the bullet hole, which meant that the barrel was jammed or pressed into
Price’s face. (See id.). He confirmed that a pressed contact gunshot wound
could not be made by mere touching. It required that the gun be jammed,
or pushed, into the skin. (See id. at 26-27). Furthermore, there was
testimony from multiple eyewitnesses that Appellee had his right arm
around Price, and was walking on Price’s left side immediately before the
(Footnote Continued Next Page)


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      Additionally, Harrisburg Detective Ryan Neal, of the Special Operations

Unit of the Criminal Investigation Division, testified that he interviewed

Appellee’s sister, Lisa Small. (See id. at 5-9). Notably for this appeal, on

cross-examination, Detective Neal testified that Ms. Small confirmed that

she gave him a statement (her second) in which she related that Jasmine

Spriggs, another girlfriend of Espada, told Ms. Small that Espada told her

(Ms. Spriggs) that he had shot Price. (See id. at 11).5

      The jury convicted Appellee.               On October 1, 2012, the trial court

sentenced him to an aggregate term of life imprisonment.6 The court denied

Appellee’s post-sentence motion, including a challenge to the weight of the

evidence, on October 15, 2012.

      Appellee filed a direct appeal, asserting the weight claim. He argued

that the testimony of several witnesses at trial, viz., that another individual,

                       _______________________
(Footnote Continued)

shooting. If Espada had been the shooter, and he was shooting from three
to five feet away, he would have had to shoot around, or past, Appellee, his
friend.
5
  In addition to Dotson and Lisa Small, Kenneth Hibbert and Jeffrey Reid,
sometime cellmates of Appellee, also testified that he told them he killed
William Price. (See N.T. Trial, 8/09/12, at 10-13; id. at 27-28; see also
Trial Court Opinion, 1/31/13, at *4).
6
  The Honorable Scott A. Evans of the Court of Common Pleas of Dauphin
County presided over Appellee’s trial, imposed sentence, and in his Rule
1925(a) opinion, requested this Court to affirm the judgment of sentence on
direct appeal. Judge Evans also issued the order for a new trial which is the
subject of this collateral appeal.




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Espada, was seen firing a gun shortly after the homicide and had admitted

shooting Price to several other people, rendered his (Appellee’s) guilty

verdict contrary to the weight of the evidence.

      A panel of this Court affirmed the judgment of sentence on the basis of

the trial court opinion, rejecting the weight claim. (See Commonwealth v.

Small, No. 2021 MDA 2012, 2013 WL 11253720, (Pa. Super. filed October

9, 2013) (unpublished memorandum), appeal denied, 94 A.3d 1009 (Pa.

2014)).

      The trial court explained the reasoning for its decision as follows:

             A review of the record in this case reveals that, while there
      are conflicts in the evidence, such discrepancies are not
      sufficient to render the jury verdict so contrary to the evidence
      as to shock one’s sense of justice. There was more than ample
      evidence of record to support the fact-finder’s guilty verdict.
      [Appellee] was seen by a number of witnesses walking in very
      close proximity to the victim moments before a gunshot was
      heard; [Appellee] was seen standing over the victim immediately
      thereafter, and then ran away; [Appellee] was close enough to
      the victim to inflict a contact wound to the victim’s head; and
      [Appellee] made incriminating statements to others regarding
      his involvement. It is worth reiterating that it is solely
      within the fact-finder’s province to assess weight and
      credibility of the evidence.

(Trial Ct. Op., 1/31/13, at *6) (citations omitted) (attached as an exhibit to

Small, supra, No. 2021 MDA 2012, at 2013 WL 11253720) (emphasis

added). As noted, on June 20, 2014, our Supreme Court denied Appellee’s

petition for allowance of appeal. (See Commonwealth v. Small, 94 A.3d

1009 (Pa. 2014)).      Appellee did not petition the United States Supreme

Court for a writ of certiorari.

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        Instead, Appellee filed a timely pro se PCRA petition on September 2,

2014.     The PCRA court appointed counsel, who filed a supplementary

petition alleging ineffective assistance of counsel and newly found evidence.

On or about March 12, 2015, Ms. Tyson gave counsel a notarized statement,

and later testified at the PCRA hearing, that the morning after the murder

Espada came to her house and told her that he shot Price.7

        After hearings, the PCRA court rejected all the claims of ineffective

assistance, but ordered a new trial for Appellee on the claim of newly found

evidence. (See Opinion and Order, 1/19/16 at 17; see also id. at 2 n.2).

The Commonwealth timely appealed.8

        The Commonwealth presents two questions for our review:

              A. Whether the PCRA court erred in finding Kenosha
        Tyson’s testimony to be newly discovered evidence when her
        testimony was cumulative to Deleon Dotson’s testimony and Lisa
        Small’s testimony that was presented at [Appellee’s] jury trial
        wherein both witnesses testified that they heard Pedro Espada
        admit to shooting William Price?

             B. Whether the PCRA court abused its discretion in finding
        Kenosha Tyson’s testimony to be credible when her testimony
        was essentially recantation of silence and when she exercised

____________________________________________


7
  We observe that Ms. Tyson’s Affidavit of Fact exhibits a sophistication of
style and use of legal concepts and terminology not readily apparent in her
testimony at the PCRA hearing.
8
  The Commonwealth timely filed a court-ordered statement of errors. The
PCRA court did not file a Rule 1925(a) opinion. The court previously filed an
order and opinion on January 19, 2016, when it ordered a new trial. See
Pa.R.A.P. 1925.



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       extreme delay in coming forward to elicit such testimony years
       after [Appellee’s] trial and when her testimony was inconsistent?

(Commonwealth’s Brief, at 4) (some capitalization omitted).

       Our standard and scope of review for the grant or denial of PCRA relief

are well-settled. An appellate court reviews the PCRA court’s findings of fact

to determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error. See

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).               The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. See id.

       In reviewing the decision of a trial court to grant a new trial
       based on after-discovered evidence, this Court “ask[s] only if the
       court committed an abuse of discretion or an error of law which
       controlled the outcome of the case.”          Commonwealth v.
       Padillas, 997 A.2d 356, 361 (Pa. Super. 2010) (citation
       omitted). “If a trial court erred in its application of the law, an
       appellate court will correct the error.” Id.

Commonwealth v. Griffin, 137 A.3d 605, 608 (Pa. Super. 2016), appeal

denied, No. 181 EAL 2016, 2016 WL 4743483 (Pa. Sept. 12, 2016).9 “The

proposed new evidence must be ‘producible and admissible.’” Id. (citation

omitted).


____________________________________________


9
  As of the filing date of this decision, the denial of allowance of appeal has
not been released for publication in the permanent law reports. Until
release, it is subject to revision or withdrawal.



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      “[W]e afford no deference to [the PCRA court’s] legal conclusions.

Where the petitioner raises questions of law, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Henkel, 90

A.3d 16, 20 (Pa. Super. 2014) (en banc) (citation and some internal

punctuation omitted), appeal denied, 101 A.3d 785 (Pa. 2014).

      We also note the following applicable legal principles:

      The PCRA provides relief for a petitioner who demonstrates his
      conviction or sentence resulted from “[t]he unavailability at the
      time of trial of exculpatory evidence that has subsequently
      become available and would have changed the outcome of the
      trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi). A
      petitioner seeking relief on this basis must establish the
      evidence: (1) was discovered after trial and could not have been
      obtained at or prior to trial through reasonable diligence; (2) is
      not cumulative; (3) is not being used solely to impeach
      credibility; and (4) would likely compel a different verdict. As
      this test is conjunctive, failure to establish one prong obviates
      the need to analyze the remaining ones. See Commonwealth
      v. Pagan, 597 Pa. 69, 950 A.2d 270, 292–93 (2008).

Commonwealth v. Solano, 129 A.3d 1156, 1179–80 (Pa. 2015) (one

citation omitted).

      “Recantation testimony is extremely unreliable. When the recantation

involves an admission of perjury, it is the least reliable form of proof. The

trial court has the responsibility of judging the credibility of the recantation.”

Commonwealth v. Henry, 706 A.2d 313, 321 (Pa. 1997) (citations

omitted) (emphasis added).

      While [our Supreme] Court has often acknowledged the
      limitations inherent in recantation testimony, see, e.g.,
      Commonwealth v. Floyd, 506 Pa. 85, 94, 484 A.2d 365, 369
      (1984) (characterizing recantation testimony as “extremely

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       unreliable”), we have not foreclosed the possibility that, in some
       instances, such testimony may be believed by the factfinder and
       thus form a basis for relief. See generally Commonwealth v.
       McCracken, 540 Pa. 541, 659 A.2d 541 (1995) (upholding a
       grant of relief in the form of a new trial based upon the
       recantation testimony of a central witness). For this to occur,
       however, the testimony must be such that it could not have
       been obtained at the time of trial by reasonable diligence; must
       not be merely corroborative or cumulative; cannot be directed
       solely to impeachment; and must be such that it would likely
       compel a different outcome of the trial. See generally id. at
       549, 659 A.2d at 545.

Commonwealth v. Williams, 732 A.2d 1167, 1180 (Pa. 1999); accord,

Commonwealth v. Smith, 17 A.3d 873, 887 (Pa. 2011) (concluding

witness’s post-trial affidavit stating she saw someone other than defendant

shoot victim, which was contrary to her statements to police and testimony

at trial, did not constitute after-discovered evidence of defendant's actual

innocence and thus did not provide grounds to grant defendant new trial on

murder charge).

       Here, on independent review, we are constrained to conclude that the

PCRA court erred in applying the appropriate legal principles to this case and

abused its discretion in granting Appellee a new trial.

       Preliminarily, we also observe that the PCRA court misstates the

record by declaring that “Ms. Tyson did not contradict her prior statements

or trial testimony.” (PCRA Court Opinion, 1/19/16, at 14).10 She did.

____________________________________________


10
  For completeness and the clarity of the record, we also note that the PCRA
court misapprehends the gender of Ali Williams as female. (See Trial Ct.
(Footnote Continued Next Page)


                                          - 10 -
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      At the PCRA hearing, the prosecutor had Ms. Tyson read into the

record her response in her signed statement from 2011 (shortly after the

murder) to the question, “Have you spoken to Pedro [Espada], Eric [Small]

or Dominique [Ford] since the homicide?” (N.T. PCRA Hearing, 5/12/15, at

62). In pertinent part, Ms. Tyson stated, “I spoke to Pedro but didn’t talk

about it.” (Id. at 63). The prosecutor responded, “So the statement you

are giving now is very different from what you said four years ago, isn’t it?”

Ms. Tyson answered, “Yeah.” (Id.).11

      Accordingly, the PCRA court’s re-characterization of Ms. Tyson’s newly

offered statement as a “‘recantation’ of silence” is unsupported by the record

and technically incorrect.       (PCRA Ct. Op., 1/19/16, at 14).   Moreover, the

PCRA court offered no authority in any statutory or case law to support its

neologism, “recantation of silence”.12 On independent review, we find none.




                       _______________________
(Footnote Continued)

Op., 1/31/13, at 3; PCRA Ct. Op., 1/19/16, at 3). Ali Williams is a male.
(See N.T. Trial, 8/08/12, at 93; see also id. at 82-83).
11
   Ms. Tyson then attempted to amend this concession by blaming the police
for writing down “what I was told,” rather than what she said. (N.T. PCRA
Hearing, 5/12/15, at 63).
12
    Both the Commonwealth and Appellee also refer to a “recantation of
silence.” Based on our independent review of the record, we remain
unpersuaded.




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       In any event, re-labeling Ms. Tyson’s contradictory declaration as a

recantation of silence does not and could not alter the application of well-

settled legal principles to the evaluation of her statement.

       Most notably, Appellee fails to establish that Ms. Tyson’s recantation

meets the four prongs of the test for acceptance of newly discovered

evidence.    See Solano, supra at 1179–80 (citing Pagan, supra at 292–

93); see also Williams, supra at 1180. Here, the Commonwealth does not

dispute the first or the third prongs.         (See Commonwealth’s Brief, at 21).

Therefore, we decline to address them.13

       On the second prong, the Commonwealth argues that Ms. Tyson’s

testimony was merely cumulative or corroborative of the testimony of

Deleon Dotson and Lisa Small. (See Commonwealth’s Brief at 20-33). We

agree.

       Even the PCRA court concedes, albeit rather reluctantly, that Ms.

Tyson’s testimony was corroborative and cumulative to other witnesses’ trial

testimony. (See PCRA Ct. Op., 1/19/16, at 15: “. . . it can be argued . . .”).

Nevertheless,     invoking     “modification    and   common   sense,”   the   court

maintains that Tyson’s affidavit and PCRA testimony are “not merely

cumulative or corroborative.” (Id.) (emphasis added). “In the same vein,”

____________________________________________


13
  We confirm for clarity that our decision not to address the two issues the
Commonwealth did not raise is procedural only. We express no conclusion
on the merits (or lack thereof) of the foregone claims.



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the PCRA court continues, “her testimony is not to be used solely to impeach

the credibility of a witness.” (Id.). We are constrained to disagree.

       The    PCRA      court’s    conclusory      denials   are   unsupported   and

unpersuasive.       Specifically, it never identifies what other purpose Ms.

Tyson’s testimony would serve.                 Instead, citing Commonwealth v.

McCracken, 659 A.2d 541 (Pa. 1995), the PCRA court concludes that

because much of the evidence against Appellee was circumstantial, and “Ms.

Tyson’s testimony regarding Mr. Espada’s admission goes to the very heart

of the defense’s theory at trial,” Appellee is entitled to a new trial. 14 (PCRA

Ct. Op., 1/19/16, at 15).         We conclude that the PCRA court’s reliance on

McCracken is misplaced.

       In McCracken, the Majority—over the vigorous dissent of then-

Justice, later Chief Justice Castille (which was joined by later Chief Justice

Cappy)─reasoned that the recanting witness, Michael Aldridge, was the only

witness who identified the appellant as the perpetrator of the murder and

robbery and reinstated the grant of a new trial. See McCracken, supra at

546. Here, multiple eyewitnesses identified Appellee as walking arm-in-arm

with the victim when the fatal shooting occurred.



____________________________________________


14
  We observe that the fact that Ms. Tyson’s testimony goes to the heart of
the defense theory only serves to confirm that the testimony is cumulative,
corroborative, and previously litigated.



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     On independent review, we conclude that more pertinent authority is

found in Padillas, supra at 365 (“Where the new evidence, however,

supports claims the defendant previously made and litigated at trial, it is

probably cumulative or corroborative of the evidence already presented.”)

(concluding   confession   of   defendant’s   brother   not   reliable   solely   as

statement against penal interest; and relationship with brother was obvious

motive to fabricate; court should have viewed recantation as suspect;

dubious circumstances surrounding recantation did not make different

verdict based on confession likely on retrial); and Griffin, supra at 608

(proposed new evidence must be producible and admissible.).

     “A statement tending to expose the declarant to criminal liability and

offered to exculpate the accused is not admissible unless corroborating

circumstances clearly indicate the trustworthiness of the statement.”

Commonwealth v. Woods, 575 A.2d 601, 603 (Pa. Super. 1990), appeal

denied, 608 A.2d 30 (Pa. 1992) (emphasis added).

     Here, on independent review, we are at a loss to discern what

corroborating circumstances are supposed to indicate the trustworthiness of

Ms. Tyson’s latest statement.         She denied reading the inconsistent

statement she had signed in 2011.       (See N.T. PCRA Hearing, 5/12/15, at

64). She blamed “many people”, including family, friends, and the police for

her reluctance to testify at trial about her now “new” evidence. (Id. at 59).

She claimed she had called the police about witness intimidation but was


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ignored. (See id. at 68). She testified she was still receiving threats, but

didn’t care what people were saying, and just chose to ignore it. (See id. at

69).

       Because the recantation evidence offered at the PCRA hearing was

merely corroborative and cumulative of evidence already presented at trial,

we conclude that the PCRA court erred in its legal conclusion and abused its

discretion in granting Appellee a new trial. See Solano, supra at 1179–80;

Williams, supra at 1180; Smith, supra at 887.

             Furthermore, Pennsylvania courts have held that only
       those hearsay declarations against interest which were originally
       made and subsequently offered at trial under circumstances that
       provided considerable assurance of their reliability should be
       admitted into evidence.    Finally, we note that recantation
       evidence is highly suspect, even when it involves an
       admission of perjury.

Woods, supra at 603.           (citations and internal quotation marks omitted)

(emphases added).

       Here, the PCRA court accepted Ms. Tyson’s statement with no

apparent corroboration. In fact, the court did not even make an assessment

of her credibility, simply noting its conclusory but rather speculative opinion

that “If credited by a jury, Ms. Tyson’s statement and testimony regarding

Mr. Espada’s admission to her would likely result in a different verdict.”

(PCRA Ct. Op., 1/19/16, at 16) (emphasis added). That is not the test. See

Henry, supra at 321 (trial court, not jury, has responsibility of judging

credibility of recantation).


                                       - 15 -
J-S69011-16


      The PCRA court now opines that “[t]he evidence against [Appellee]

was certainly not overwhelming, especially when there was also evidence

supporting Mr. Espada’s involvement.” (PCRA Ct. Op., 1/19/16, at 16). This

assessment stands in stark contrast to the same court’s assessment on

direct appeal:

            There was more than ample evidence of record to support
      the fact-finder’s guilty verdict. [Appellee] was seen by a number
      of witnesses walking in very close proximity to the victim
      moments before a gunshot was heard; [Appellee] was seen
      standing over the victim immediately thereafter, and then ran
      away; [Appellee] was close enough to the victim to inflict a
      contact wound to the victim’s head; and [Appellee] made
      incriminating statements to others regarding his involvement. It
      is worth reiterating that it is solely within the fact-finder’s
      province to assess weight and credibility of the evidence.

(Trial Ct. Op., 1/31/13, at *6) (emphasis added).

      The PCRA court now concludes that “[i]n light of the circumstantial

evidence at trial, and not a shred of forensic evidence to support [Appellee]

as the shooter, a different outcome is probable.” (PCRA Ct. Op., 1/19/16, at

16). We disagree.

      It bears noting that while much of the evidence at trial may have been

circumstantial, it is plainly beyond dispute that multiple witnesses placed

Appellee side by side with his arm around the victim, Price, at the time of

the shooting.    The medical examiner determined that the fatal shot was a

contact wound.    Furthermore, there is nothing defective or deficient about

circumstantial evidence.




                                   - 16 -
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            In reviewing whether the evidence was sufficient to
      support a first-degree murder conviction or convictions, the
      entire trial record must be evaluated and all evidence
      considered. In applying the above standards, we bear in mind
      that the Commonwealth may sustain its burden by means
      of wholly circumstantial evidence, and the trier of fact, while
      passing upon the credibility of witnesses and the weight of the
      evidence, is free to believe all, part, or none of the evidence.

Commonwealth v. Poplawski, 130 A.3d 697, 709 (Pa. 2015), cert.

denied, 137 S. Ct. 89 (2016) (citations and internal quotation marks

omitted) (emphasis added).

      Ms. Tyson’s recantation testimony, identifying Espada as the shooter,

was merely cumulative and corroborative of evidence previously presented

at trial, in support of the acknowledged defense theme of the case. “Where

the new evidence . . . supports claims the defendant previously made and

litigated at trial, it is probably cumulative or corroborative of the evidence

already presented.” Padillas, supra at 365 (citations omitted).

      “As this test is conjunctive, failure to establish one prong obviates the

need to analyze the remaining ones.”         Solano, supra at 1180 (citation

omitted).   Accordingly, we decline to address the other deficiencies of the

purported recantation testimony.




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      Order reversed.     Case remanded to the PCRA court for disposition

consistent with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




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