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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JARVIS PAYTON,

                        Appellant                  No. 2583 EDA 2013


      Appeal from the Judgment of Sentence entered August 9, 2013,
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0013450-2012


BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY ALLEN, J.:FILED JUNE 17, 2015

     I join the Majority’s conclusion that sufficient evidence supports

Appellant’s convictions. My review of the record, however, establishes that

Appellant has not met his burden of establishing his after-discovered

evidence claim.   I therefore dissent from the Majority’s decision to vacate

Appellant’s sentence and remand for an evidentiary hearing.

     Our Supreme Court has summarized:

           The four-prong test for awarding a new trial because of
        after-discovered evidence is well settled. The 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. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014) (citation

omitted). Additionally, “the proposed new evidence must be ‘producible and
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admissible.’”   Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa.

2011) (citation omitted). In order for a new trial to be granted, a defendant

must establish at the evidentiary hearing, by a preponderance of the

evidence, that each of the above factors has been met. Commonwealth v.

Padillas, 997 A.2d 356, 363 (Pa. Super. 2010).

      My review of the record reveals that Appellant has failed to meet his

burden. The fact that Officer O’Connor was twice found civilly responsible by

a federal district court has little relevance to Appellant’s criminal conviction.

See generally, Pa.R.E. 401. The same is true regarding statements made

by Bell in his affidavit, in which he states in his case “officers O’Connor and

Goshert fabricated a basis for the unlawful stop in their police reports,

searched Bell’s person and vehicle without consent, and gave false

testimony at trial.”    Majority, at 8.   In fact, the jury in Bell rejected the

plaintiff’s claim of an illegal stop. See Bell, 2014 U.S. Dist. LEXIS 163333.

At best, this evidence could be used to impeach Officer O’Connor’s

credibility. At Appellant’s trial, the trial court as fact-finder credited Officer

O’Connor’s version of the incident, and expressly “discredited [Appellant’s]

testimony based upon his demeanor, manner of testifying, as well as his

prior conviction for a crimen falsi.” See Trial Court Opinion, 5/16/14, at 4.

Clearly, under Castro and Chamberlain, Appellant’s after-discovered

evidence claim fails.

      The Majority nevertheless accepts Appellant’s claim that his new

evidence would provide a basis to pursue a suppression motion. Majority, at

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12.   My review of the record refutes Appellant’s claim.             At sentencing,

Appellant asked the trial court to remove trial counsel because Appellant

believed counsel to be ineffective. See N.T., 8/9/13, at 4. Appellant cited

myriad reasons to support his assertion, including trial counsel’s failure to

pursue a suppression motion.           Id., at 4-13.   According to Appellant, trial

counsel informed him that because he was a backseat passenger in someone

else’s vehicle, he lacked “standing” to pursue a suppression motion. 1 N.T.,

8/9/13, at 7.      At sentencing, trial counsel likewise indicated that he had

communicated        to   Appellant     that    a   suppression   motion   would    be

unsuccessful.     Id. at 18.     Because Appellant was charged with possessory

crimes, he would have had standing to file a suppression motion; there is no

indication in the record, however, that Appellant would be able to establish

that he had an expectation of privacy in the other person’s vehicle.              See

generally, Commonwealth v. Powell, 994 A.2d 1096 (Pa. Super. 2010),

appeal denied, 13 A.3d 477 (Pa. 2010).              Indeed, during his allocution at

sentencing, Appellant informed the trial court that the vehicle in which he

was a passenger “did not belong” to him. N.T., 8/9/13, at 34. Thus, the




____________________________________________


1
 The certified record contains both an omnibus pre-trial motion filed by prior
defense counsel, as well as a pro se suppression motion. Although the trial
court denied one of these motions prior to Appellant’s waiver trial, see N.T.
6/7/13, the motion was not specifically identified.




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record refutes Appellant’s claim that he could successfully pursue a

suppression motion.

     In sum, because sufficient evidence supports Appellant’s convictions,

and his after-discovered evidence claim lacks merit, I would affirm

Appellant’s judgment of sentence.




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