J-S40024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DUSTIN ALAN WALLS,

                        Appellant                 No. 2125 MDA 2013


           Appeal from the Judgment of Sentence May 15, 2013
             In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0000361-2011


BEFORE: BENDER, P.J.E., BOWES, and PANELLA, JJ.

MEMORANDUM BY BOWES, J.:                       FILED OCTOBER 09, 2014

     Dustin Alan Walls appeals from the judgment of sentence of two years

and three months to fifteen years incarceration imposed by the trial court

after a jury found him guilty of possession with intent to deliver (“PWID”)

oxycodone. After careful review, we affirm.

     Pennsylvania State Trooper John Brumbaugh and the Franklin County

Drug Task Force utilized a confidential informant (“CI”) to purchase

oxycodone on March 11, 2010. The CI purchased oxycodone in the parking

lot of Kentucky Fried Chicken and handed the drugs to Trooper Brumbaugh.

The Commonwealth charged Appellant with PWID with respect to this

incident on January 18, 2011. Appellant filed a motion in limine seeking to
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preclude any statements by the CI unless the CI testified, and argued for

disclosure of the CI’s identity.1 The court denied the motion. Nonetheless,

the identity of the CI was revealed ten days before trial as Dennis Rexrode.

Rexrode did not testify at trial. However, Trooper Brumbaugh testified that

Rexrode purchased drugs from Appellant on the date in question. Detective

Darren North also testified that Rexrode was the CI involved.         The court

denied Appellant’s request for a missing witness instruction relative to

Rexrode, and directed Appellant not to argue that position in his closing

summation.      The jury initially asked one question of the court, which was

how the Commonwealth identified Appellant, before it found Appellant guilty

of PWID. Thereafter, the trial court sentenced Appellant to two years and

three months to fifteen years imprisonment.

       Appellant filed a timely post-sentence motion alleging the existence of

after-discovered evidence.          Specifically, Appellant learned that Rexrode

denied involvement in the drug transaction. The court conducted a hearing

on June 27, 2013, and scheduled an additional hearing.            However, the

Commonwealth continued the matter. Appellant filed a motion to extend the

time to decide his post-sentence motion, see Pa.R.Crim.P. 720(B)(3)(b), on

July 25, 2013.      The court conducted the remainder of the post-sentence


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1
   Appellant also filed a suppression motion, which is irrelevant for purposes
of this appeal.



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hearing on October 10, 2013, and indicated that it had granted Appellant’s

extension.

       Rexrode testified that he was not involved in any drug transactions

with Appellant on behalf of the Commonwealth.              He indicated that he had

aided the Commonwealth with four specific targets, but was not involved

with   the   investigation   pertaining    to    Appellant.       The   Commonwealth

countered     with    testimony    from         both    Trooper     Brumbaugh    and

Detective North.     Detective North related that Appellant informed him that

Trooper Brumbaugh confused the informant involved and that it was not

Rexrode, but a person named Tom Land.                  According to Detective North,

Appellant did not deny that he was involved in the drug transaction.

       Ultimately, Appellant’s motion was denied. This timely appeal ensued.

The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.              Appellant complied,

and the trial court authored its Rule 1925(a) opinion.             The matter is now

ready for our review. Appellant’s sole issue on appeal is “[w]hether the trial

court erred in denying Appellant[’]s [p]ost-[s]entence [m]otion for a new

trial based on after discovered evidence in the form of the confidential

informant denying having ever purchased narcotics from Appellant?”

Appellant’s brief at 6.

       We review a trial court’s decision to deny or grant a motion for new

trial on the basis of after-discovered evidence for an abuse of discretion.


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Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013). Our Supreme

Court has consistently opined that a motion for a new trial should be granted

when the after-discovered evidence is producible and admissible and:

       (1) could not have been obtained prior to the end of trial with
       the exercise of reasonable diligence; (2) is not merely
       corroborative or cumulative evidence; (3) is not merely
       impeachment evidence; and (4) is of such a nature that its use
       will likely result in a different verdict on retrial.

Id.2    A defendant must establish by a preponderance of the evidence that

each of these prongs has been met to be entitled to a new trial.

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

       Appellant argues that Rexrode’s testimony meets all four prongs of the

after-discovered evidence test. He contends that the trial court agreed that

he had satisfied the first two prongs by showing that the evidence was

discovered after trial and could not have been discovered by the exercise of

due diligence and the evidence was not cumulative.       However, Appellant

submits that the court erred in finding that the evidence would have been



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2
   This test has received criticism with respect to the third element. See
Commonwealth v. Choice, 830 A.2d 1005 (Pa.Super. 2003) (Klein, J.
dissenting); see also Commonwealth v. Perrin, 59 A.3d 663 (Pa.Super.
2013) (Wecht, J. concurring) (citing Choice, supra); Commonwealth v.
Foreman, 55 A.3d 532 (Pa.Super. 2012) (Wecht, J. concurring) (citing
Choice, supra). In this respect, Judge Klein and Judge Wecht astutely
recognized that, in certain cases, impeachment evidence could reveal that
the outcome of the trial would be different. We briefly discuss the history of
this element in the body of this memorandum.



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used solely to impeach Trooper Brumbaugh and was not likely to result in a

different verdict.

          Appellant acknowledges that Rexrode’s testimony would impeach that

of Trooper Brumbaugh. Nonetheless, he points out that this testimony also

would be factual testimony that Appellant did not sell drugs to Rexrode, i.e.,

it   is   both   impeachment    evidence   and   exculpatory   factual   evidence.

According to Appellant, Rexrode’s testimony would “factually account for the

whereabouts of the informant who the Commonwealth specifically alleged to

the jury to have been present in a vehicle at a specific date and time

conducting a purchase of narcotics[.]” Appellant’s brief at 12. He adds that

Rexrode’s testimony also calls into question the chain of custody of the

drugs involved since Trooper Brumbaugh testified that Rexrode provided him

with the drugs sold to him by Appellant.          With respect to the prejudice

aspect of the after-discovered evidence test, Appellant asserts that the

evidence “speaks directly to [his] innocence.” Id. at 14. Appellant contends

that it is likely that the jury would have reached a different outcome since

the CI allegedly involved would have testified that he did not take part in the

drug deal.

          The Commonwealth has elected not to file a brief, relying solely on the

trial court opinion in this matter. The trial court set forth that Appellant did

attempt to contact Rexrode by both phone and letter via the phone numbers

and address provided by the Commonwealth prior to trial, and was


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unsuccessful. The court found that Appellant exercised reasonable diligence

in attempting to locate and discuss the matter with Rexrode.

      In addition, the court concluded that Appellant met the second aspect

of the after-discovered evidence test.     In this regard, the court reasoned

that Rexrode’s testimony was not cumulative of Appellant’s testimony since

Appellant did not testify regarding the CI used in the deal. Rather, Appellant

stated that he did not deliver the drugs and could not have done so because

he did not have a vehicle at that time. Since Rexrode’s testimony was that

he was not the CI involved in this matter, and Appellant’s testimony did not

encompass such a claim, the evidence was not cumulative.

      As noted, however, the trial court determined that Appellant could not

meet the final two prongs of the after-discovered evidence paradigm. The

court opined that Rexrode’s testimony would have been used solely to

impeach Trooper Brumbaugh.       Finally, the court concluded that Appellant

could not demonstrate that the outcome of the trial would have differed on

retrial had Rexrode testified. The court reasoned that Rexrode’s testimony

only established his whereabouts, not those of Appellant.      In its view, the

evidence was not exculpatory. It added that Appellant’s own admission to

Detective North was that Trooper Brumbaugh incorrectly identified the CI,

not that he did not sell drugs on the date in question.

       Here, Appellant’s attempts to contact Rexrode prior to trial were

unsuccessful.   Following trial, Appellant, according to his post-sentence


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motion, encountered Rexrode at a local gas station. Rexrode affirmed that

he did not purchase drugs from Appellant and that same day reiterated

that claim to counsel for Appellant. As mentioned, the trial court determined

that Appellant could not have learned the nature of Rexrode’s testimony

until after trial and that he exercised diligence in attempting to locate and

contact Rexrode before trial. We decline to disturb this ruling.

         In addition, we agree with the trial court’s assessment that Rexrode’s

testimony was not merely cumulative or corroborative of evidence admitted

at trial. Rexrode would have testified that he did not purchase drugs from

Appellant on the date in question. Although Appellant testified that he did

not sell drugs on the relevant date, Rexrode’s proffered testimony differed

from the testimony of Trooper Brumbaugh. Certainly, Rexrode’s testimony

would have impeached Trooper Brumbaugh; however, we disagree that

Rexrode’s testimony would have been used solely to impeach the trooper.

         Evidence that Rexrode did not purchase drugs from Appellant would be

exculpatory in nature based on the Commonwealth’s evidence admitted at

trial.    In the present case, the Commonwealth alleged and introduced

evidence that Appellant sold oxycodone, in the form of Percocet pills, to

Rexrode.       Rexrode’s testimony that he did not purchase the pills is

exculpatory in this respect. This, of course, does not mean that Appellant

did not sell drugs to another individual; nevertheless, the Commonwealth’s

trial evidence was premised on a sale to Rexrode. Hence, we disagree with


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the   trial   court’s   conclusion   that    Rexrode’s     testimony     was   merely

impeachment evidence. Impeachment evidence that is after-discovered may

compel    a    different   verdict   where    it   is   material   and   exculpatory.

Commonwealth v. Mosteller, 284 A.2d 786 (Pa. 1971); Commonwealth

v. Krick, 67 A.2d 746 (Pa.Super. 1949).                 Moreover, simply because

evidence can be used to impeach another witness does not mean that its

sole use is for impeachment purposes. Indeed, it is clear that the original

purpose of the impeachment prong of the test has come unhinged from its

original intent and blurred the law in this area.

      In Moore v. Philadelphia Bank, 5 Serg. & Rawle 41 (Pa. 1819), the

Pennsylvania Supreme Court set forth that, to be entitled to a new trial

based on after-discovered evidence: “1st, that the evidence has come to his

knowledge since the trial; 2d, that it was not owing to want of due diligence,

that it did not come sooner; and 3d, that it would probably produce a

different verdict, if a new trial were granted.”          Later, and after citing to

Moore, the Pennsylvania Supreme Court expounded on the law regarding a

motion for a new trial based on after-discovered evidence in a criminal case

in Commonwealth v. Flanagan, 7 Watts & Serg. 415 (Pa. 1844).                     The

Flanagan Court opined,

      a great deal of testimony has been given, which does not
      establish independent facts, material to the issue; but its only
      effect is to impeach the credit of some of the witnesses
      examined on the former trial. But the rule of law is, that the
      testimony must go to the merits of the case, and must not be
      merely for the purpose of impeaching the testimony of the

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       witnesses. For newly discovered evidence, discrediting witnesses
       who testified on a former trial, a new trial is never granted.

Id. at 423. The case relied upon by the Flanagan Court for this proposition

was People ex rel. Oelricks v. Superior Court of City of New York, 10

Wend. 285 (1833).3 That decision delineated:

       With respect to granting new trials on the ground of newly
       discovered testimony, there are certain principles which must be
       considered settled. 1. The testimony must have been discovered
       since the former trial. 2. It must appear that the new testimony
       could not have been obtained with reasonable diligence on the
       former trial. 3. It must be material to the issue. 4. It must go to
       the merits of the case, and not to impeach the character of a
       former witness. 5. It must not be cumulative. 4 Johns. R. 425. 5
       id. 248. It cannot be denied in this case that the testimony
       offered was material to sustain the point of defence; and that it
       is not liable to the objection that it goes to impeach the plaintiff's
       witness. Russell says nothing about the character of the witness
       Heckscher, but contradicts the fact sworn to by him.

Id. at 292 (italics in original). Certainly, factual testimony that contradicts

the testimony of another witness can be impeachment evidence, but it is not

evidence that impeaches the character of a witness. The earlier New York

case cited therein reasoned, “A new trial is not to be granted, merely on the

discovery of new evidence, which would impeach the character of a witness

at the trial. There would be no end of new trials on that ground.” Shumway

v. Fowler, 4 Johns. 425 (N.Y.Sup. 1809). Thus, the impeachment evidence
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3
  The Flanagan Court entered an incorrect pin cite as it cited to 10 Wend.
492, rather than 292. The case cited has no bearing on after-discovered
evidence. However, the Court cited to the correct case in the next sentence
in discussing the cumulative evidence portion of the after-discovered
evidence test.



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referred to by the early courts was in reference to impeaching the character

of a witness or impeachment as to non-material facts. Where the evidence

contradicted factual testimony as to a material issue, it was not considered

as being used solely for impeachment purposes. See Oelricks, supra, cited

by Flanagan, supra. This nuance was accepted in Mosteller, supra, and

Krick, supra.     The alleged after-discovered evidence in those matters

involved recantation from a victim.    While such testimony would certainly

impeach the victim’s earlier testimony, it also was material factual testimony

that contradicted facts sworn by that person and was exculpatory in nature.

      Hence, the original import of the impeachment prong of the after-

discovered evidence test applied to evidence that impeached the character

of a witness, or was impeachment that was immaterial to the merits of the

case, not evidence that could be exculpatory. But see Padillas, supra at

367 (citing to Commonwealth v. Pagan, 950 A.2d 270 (Pa. 2008), which

did not rely on the impeachment aspect of the after-discovered evidence

test, and opining that an admission by the brother of the defendant to

having committed the crime would be used solely for impeachment

purposes); Commonwealth v. Kostan, 37 A.2d 606 (Pa. 1944).

      Setting aside whether this evidence was not solely for impeachment,

we agree that Appellant is not entitled to relief because Rexrode’s testimony

would not likely result in a different verdict upon re-trial.   Even assuming

arguendo that Rexrode was not the CI involved, Appellant acknowledged to


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Detective North after his trial that he sold the drugs on the date and place in

question to a different CI.    Such an admission negates the exculpatory

aspect of Rexrode’s testimony.     As the Flanagan Court reasoned over a

century and a half ago, “[i]f, with the newly discovered evidence before

them, a jury ought to come to the same conclusion as the former jury, it

would be worse than useless to grant a new trial.” Id. at 424.

      Judgment of sentence affirmed.

      Judge Panella Concurs in the Result.

      P.J.E. Bender files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2014




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