J-A02010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TODD DWAYNE DAWSON, JR.

                            Appellant                  No. 687 MDA 2015


           Appeal from the Judgment of Sentence September 2, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002474-2013


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

MEMORANDUM BY PANELLA, J.                                FILED MAY 06, 2016

        Appellant, Todd Dwayne Dawson, Jr., appeals from the judgment of

sentence entered September 2, 2014, in the Court of Common Pleas of

Berks County, following his conviction of two counts of robbery,1 two counts

of conspiracy to commit robbery,2 burglary,3 and conspiracy to commit

burglary. Additionally, Appellant has filed a “Request for a Remand to the

Trial Court to Consider Application for a New Trial Based on After Discovered

Evidence Pursuant to Pa.R.Cr.P. 720(C)” (“Motion for Remand”). After



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3701(a)(1)(ii), (iv).
2
    18 Pa.C.S.A. § 903(a)(1).
3
    18 Pa.C.S.A. § 3502(a).
J-A02010-16



review, we grant Appellant’s request and remand the case for a hearing on

Appellant’s after-discovered evidence claim.

      We summarize the facts adduced at the jury trial as follows. In March

2012, Justin Hall, Alex Dephilipo, and Joseph Wooding shared an apartment

located at 602 Briar Circle South located in Kutztown, Pennsylvania. At the

time, the roommates were students at Kutztown University. On the evening

of March 30, 2012, Hall observed through a second floor window a group of

six men gathered at the outside stoop to the apartment. He recognized one

of the individuals as Christopher Biney, whom he had previously met at

orientation.

      Shortly thereafter, Hall heard a downstairs window being forced open

and the sounds of an individual entering the apartment through that

window. After Hall unsuccessfully attempted to warn his roommates of the

intruders, he locked himself in his bedroom. A few moments later, Hall heard

what sounded like someone being hit in the stairwell and then heard

someone attempting to force open the bedroom door. At this point, Hall

jumped out of his bedroom window and ran to a friend’s house.

      When Hall returned to the apartment approximately 45 minutes later,

he observed that his roommates, Wooding and Dephilipo had sustained

minor cuts and swelling to their faces during the robbery. The roommates

soon discovered that an Xbox (a video game console), three laptops, a cell

phone and multiple marijuana plants were missing from the apartment.




                                    -2-
J-A02010-16



      Christopher Biney was subsequently arrested for his suspected

involvement in the robbery. Although Biney initially failed to identify any

other participants, he later indicated to police that Appellant, Jesse Thomas,

Anthony Battle and Kali Smith were also involved in the robbery. Co-

conspirator Anthony Battle also gave a statement to police implicating

Appellant’s involvement in the robbery.

      Based upon Biney and Battle’s statements to police, Appellant was

charged with multiple counts of robbery, burglary, and conspiracy. At the

jury trial conducted on August 6, 7, and 8, 2014, neither Hall nor his

roommates were able to identify the perpetrators of the robbery. Biney and

Battle both testified to Appellant’s involvement consistent with their prior

statements to police. The jury ultimately convicted Appellant of the above-

mentioned charges.

      On September 2, 2014, the trial court sentenced Appellant to an

aggregate term of 4½ to 12 years’ imprisonment. Appellant subsequently

filed an untimely pro se notice of appeal, which this Court quashed.

Appellant then filed a motion to reinstate his direct appeal rights nunc pro

tunc, which the trial court granted. This timely appeal followed.

      On May 22, 2015, during the pendency of his direct appeal, Appellant

filed a Motion for Remand based upon after-discovered evidence. Appellant

asserted in the motion that on May 18, 2015, he received from Kali Smith’s

counsel a notarized statement from co-conspirator Anthony Battle in which

Battle recants his testimony implicating Appellant and Smith in the robbery

                                     -3-
J-A02010-16



of 602 Briar Circle South.4 In the statement attached to Appellant’s motion,

Battle states that while incarcerated, he and Christopher Biney concocted a

plan to place the blame for the robbery on Appellant and Smith in an effort

to get less time for themselves. Battle further asserted that he had a copy of

Christopher Biney’s statement implicating Appellant in the robbery when he

was interviewed by the Kutztown Police Department and that he read that

statement as if it were his own. Battle maintained that Appellant and Smith

were innocent of the crimes for which they were convicted. Appellant now

argues     that   this    information      constitutes   after-discovered   evidence

warranting a new trial.

       Pennsylvania Rule of Criminal Procedure 720(C) provides that “[a]

post-sentence motion for a new trial on the ground of after-discovered

evidence must be filed in writing promptly after such discovery.” The

comment to this rule indicates 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[.]” Id. Comment.

       Whether a petitioner is entitled to a new trial must be made by the

trial court at an evidentiary hearing. See Commonwealth v. Padillas, 997

A.2d 356, 363 (Pa. Super. 2010). At the evidentiary hearing, it is the

____________________________________________


4
 The statement was notarized on November 4, 2014, several months after
Appellant’s judgment of sentence was entered.



                                           -4-
J-A02010-16



petitioner's burden to prove, 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. See, e.g., Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa.

2008).

      In Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014), our Supreme

Court addressed whether a petitioner may “meet the test for after-

discovered evidence where [he] proffers no evidence, but instead relies on a

newspaper article.” Castro, 93 A.3d at 824. Concluding that a newspaper

article is not evidence but is rather “a collection of allegations that suggest

such evidence may exist,” id. at 825, the Supreme Court offered the

following guidance in connection with this Court’s consideration of a Rule

720 motion:

      We decline to impose a strict requirement that the proponent of
      a Rule 720 motion attach affidavits or other offers of proof; the
      rule does not contain express language requiring this, in contrast
      to the rules pertaining to PCRA petitions. However, we hold a
      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.... Absent identification of the actual
      testimony, physical evidence, documentation, or other type of
      evidence to support the allegations of [the officer’s] wrongdoing,
      we cannot conclude appellee had evidence to offer; to conclude
      otherwise would be speculation.

Id. at 827.


                                     -5-
J-A02010-16



      Here, Appellant was not alerted to Battle’s recantation statement until

March 18, 2015, well after the conclusion of trial. We are therefore satisfied

that Appellant has met the first prong of the after-discovered evidence test.

We further find that the evidence is not cumulative or corroborative, as

Biney and Battle’s statements at trial implicated Appellant in the robbery.

Thus, the second prong is met.

      Regarding the remaining prongs of the test, we are guided by this

Court’s decision in Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super.

2015), which the panel considered on remand from the Pennsylvania

Supreme Court in light of Castro. The appellant in Perrin was convicted of

aggravated assault, robbery and related charges based primarily upon the

testimony of Lynwood Perry, who informed the jury that Appellant had

joined him and another individual in committing the robbery. See id. at 51.

While appellant’s direct appeal was pending, the District Attorney’s office

forwarded to appellant’s counsel a communication from the FBI, which

summarized an interview with a cellmate who had been incarcerated with

Perry. See id. The cellmate stated Perry had indicated that he falsely

testified against Appellant because “someone had to ‘go down’ for it,” but

that Appellant was not actually involved in the crime. Id.

      Given that the victim had prevaricated in his identification of the

appellant, the panel found significant the evidence that the key witness at

trial admitted that he had perjured himself and that the appellant had

nothing to do with the crime. See id. at 53. The panel quoted from its

                                    -6-
J-A02010-16



original decision, acknowledging that it did “not know at that point the

extent of the statements against his interest that Perry made to [his

cellmate], or how much the evidence will point towards impeachment of

Perry versus exculpation of Appellant.” Id. (citation omitted). Nonetheless,

the panel ultimately concluded that because the evidence pointed toward

Appellant’s innocence it was “appropriate to remand the case to allow

Appellant to flesh-out his claim for a new trial before the trial court.” Id.

      We find the panel’s reasoning in Perrin applies equally to the instant

case. Here, none of the victims identified Appellant as a participant in the

robbery. The sole evidence of Appellant’s participation in the robbery

consisted of Battle and Biney’s testimony at trial—testimony that Battle’s

recantation now calls into serious doubt. The proof of the after-discovered

evidence at issue is a notarized statement of an indicted co-conspirator

admitting that he colluded with another co-conspirator, who also testified

adversely to the Appellant at trial, to falsely implicate Appellant in the

robbery. This evidence of Appellant’s innocence is decidedly more substantial

than the unsubstantiated newspaper article the Supreme Court found

insufficient in Castro. We find that, at the very least, Appellant should be

afforded the opportunity to raise his after-discovered evidence claim at a

hearing before the trial court.

      Accordingly, we grant Appellant’s motion for remand and remand this

case for an evidentiary hearing to determine whether a new trial based upon

the after-discovered evidence is warranted. If the trial court determines that

                                      -7-
J-A02010-16



a new trial is not warranted, Dawson may file another appeal, which shall be

treated as a direct appeal from his judgment of sentence.

     Motion for Remand is granted. Case remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




                                    -8-
