J-S80017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                     v.

APRIL DEMANCHE

                          Appellee                    No. 5 MDA 2016


          Appeal from the PCRA Order Dated November 30, 2015
              In the Court of Common Pleas of York County
            Criminal Division at No: CP-67-CR-0005999-2014


BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 30, 2016

     The Commonwealth appeals from the November 30, 2015 order

entered in the Court of Common Pleas of York County (“PCRA court”), which

permitted Appellee April Demanche to withdraw her plea of nolo contendere

and proceed to trial based on a recantation claim pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-46.         Upon careful

review, we affirm.

     The facts and procedural history underlying this case are undisputed.

Briefly, on April 23, 2015, Appellee pled no contest to two counts of

endangering the welfare of children under 18 Pa.C.S.A. § 4304(a)(1) and

was sentenced to consecutive five-year terms of probation. On August 21,

2015, Appellee filed the instant PCRA petition, alleging that, between July 5,

2015, and July 15, 2015, she discovered that two minor victims had
J-S80017-16



recanted their allegations of abuse against Appellee.1              The PCRA court

conducted a hearing, after which it granted Appellee PCRA relief based on

after-discovered recantation evidence on November 30, 2015.2                       The

Commonwealth         timely      appealed      to   this   Court.    Following     the

Commonwealth’s        filing   of   a   Pa.R.A.P.    1925(b)   statement   of    errors

complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion.

        On appeal,3 the Commonwealth raises three issues for our review:


____________________________________________


1
  Generally, a defendant who pleads guilty waives all defects and defenses
except those concerning the jurisdiction of the court, the legality of the
sentence, and the validity of the guilty plea. See Commonwealth v.
Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). A nolo contendere plea
is treated the same as a guilty plea. Commonwealth v. Leidig, 850 A.2d
743, 745 (Pa. Super. 2004), aff’d, 956 A.2d 399 (Pa. 2008).
2
  In Commonwealth v. Starr, 301 A.2d 592 (Pa. 1973), our Supreme
Court determined that a court should allow the withdrawal of a guilty plea
after sentencing to correct a manifest injustice to the defendant.
Subsequently, the Court determined that any after-discovered evidence
which would justify a new trial would also satisfy the requirements of Starr.
Commonwealth v. Peoples, 319 A.2d 679, 681 (Pa. 1974). Specifically,
the Court stated that “any after-discovered evidence which would justify a
new trial would also entitle a defendant to withdraw his guilty plea.” Id.
3
    We have explained:

        This Court examines PCRA appeals in the light most favorable to
        the prevailing party at the PCRA level. Our review is limited to
        the findings of the PCRA court and the evidence of record[.]
        Additionally, [w]e grant great deference to the factual findings of
        the PCRA court and will not disturb those findings unless they
        have no support in the record. In this respect, we will not
        disturb a PCRA court’s ruling if it is supported by evidence of
        record and is free of legal error.      However, we afford no
        deference to its legal conclusions. [W]here the petitioner raises
        questions of law, our standard of review is de novo and our
        scope of review is plenary.
(Footnote Continued Next Page)


                                            -2-
J-S80017-16


      I. Whether [Appellee] is ineligible for relief under the PCRA
      under Section 42 Pa.C.S.A. § 9543(a)(2)(iv) as the purported
      victim recantations could have been discovered by going to trial
      and examining the victims at trial?[4]

      II. Whether the lower court erred in granting [Appellee’s] PCRA
      petition to withdraw a no-contest Alford plea,[5] based upon
      purported recantations of two of four juvenile victims?

      III. Whether [the] PCRA court erred in permitting [Appellee] to
      withdraw her no-contest plea where the plea consisted of two
      counts involving a consolidated claim of four victims where only
      two victims recanted?

Commonwealth’s Brief at 4 (unnecessary capitalization omitted).

      After careful review of the record and the relevant case law, we

conclude that the PCRA court accurately and thoroughly addressed the

merits of the Commonwealth’s claims.              See PCRA Court Rule 1925(a)

Opinion, 4/5/16, at 7-19. Accordingly, we affirm the PCRA court’s November



                       _______________________
(Footnote Continued)

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super .2014) (citations
and quotation marks omitted), appeal denied, 101 A.3d 785 (Pa. 2014).
4
  To obtain relief based upon newly-discovered evidence under the PCRA, a
petitioner must establish that: (1) the evidence has been discovered after
trial and it could not have been obtained at or prior to trial through
reasonable diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel a different
verdict. Commonwealth. v. D'Amato, 856 A.2d 806, 823 (Pa. 2004)
(citation and quotation marks omitted). In fact, the PCRA provides relief
where a petitioner can prove “[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.A. § 9543(a)(2)(vi).
5
  North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is a nolo
contendere plea in which the defendant does not admit guilt but waives his
trial and voluntarily, knowingly, and understandingly consents to the
imposition of punishment by the trial court. Alford, 400 U.S. at 37.



                                            -3-
J-S80017-16



30, 2015 order. We further direct that a copy of the PCRA court’s April 5,

2016 Rule 1925(a) opinion be attached to any future filings in this case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016




                                    -4-
                                                                                                      Circulated 11/30/2016 04:12 PM
1· .: ,·.




i_;·;




' . , ·~

                -··-··---•          ··~•--4H-h-···---·••••   ·--
                                                                   ---------------------·---·-----------                                                 ··---·-      --   ..
                        IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
                                             CRIMINAL DIVISION

                 COMMONWEALTH
    :·'..   '
                        Appellant
                               v.                                               NO. CP-67-CR-0005999-2014
 I.; ..                                                                                                                         ,.... '
     .1
                 APRIL DEMANCHE,                                                                                                              (


                                             Def end ant/ Appellee                                        ~ ..._.,             :;. '~
                                                                                                                                             l.. .
                                                                                                          :~'           . )
                                                                                                                               •·
                                                                                                                               ; )
                                                                                                                                        I

                                                                                                          .,,.·-   ..                        (       I

                 COUNSEL OF RECORD:                                                                                                 I
· 1.:·                                                                                                                         (.,')        r -~ \       I~       I
                                                                                                                                            ( ' !        . •:    1
                               James E. Zarnkotowicz, Esquire            Anthony J. Tambourine, Esquire                                     d ;.~
                                                                                                                                            t/111        -····
                                                                                                                                                              ::l
                               Counsel for the Appellant                 Counsel for the Appel lee                                          ···+ . ( -
                                                                                                                                            P'l -c r,i
                                                                                                                              w             ::0           CJ
                                                                                                                              ......
                             OPINION IN SUPPORT OF ORDER PURSUANT TO RULE l925(a) OF THE
                                           RULES OF APPELLATE PROCEDURE

                               The Court received a Notice of Appeal, docketed on December 30, 2015, that the

                Commonwealth of Pennsylvania appeals to the Superior Court of Pennsylvania the Order

                entered in this case on November 30, 2015. Having considered all evidence, testimony, and

                relevant case Jaw, the Court now issues this Opinion in support of our November 30, 2015

                Order.

                I.             Procedural History

                               By the filing of an [nformation on September 29, 2014, the Appellee was charged

                with Criminal Solicitation to Involuntary Deviate Sexual Intercourse-Less Than 13 Years

                of Age, four counts of Unlawful Restraint, four counts of Endangering Welfare of Children,

                and Corruption of Minors. Thereafter, the Appellee completed a Waiver of Arraignment on

                October 17, 2014. On February 12, 20 J 5, the case was listed for trial in the March of 2015




-···--------    ----·---              --·------···-·-------
1.1




            .....   ·--····---····--··   -~·-······----·-·-·---           ·-·····--·····----   ············~---··---------·---
I·· •. '
                                            trial term. Believing the Commonwealth possessed sufficient evidence to convince a jury of

.·_,!                                       her guilt, the Appellee entered an Alford plea on May 8, 2015 to two added counts of

··/' .. •
                                           Endangering Welfare of Children under 18 Pa.C.S.A. § 4304(a)(l ). The Appellee was then

                                           sentenced to consecutive terms of five years of probation on each count with the opportunity

                                           to close the case after five years of compliance.
in

                                                            On October 27, 2015, a Post-Conviction Relief Act Hearing was held to consider

                                           Appellee's petition for a new trial based upon the recantations of key witnesses. Having

                                           reserved our decision, we issued an Order, on November 30, 2015, granting the Appellee a

                                           new trial based upon the credible renunciations of the two eldest victims' testimony.

                                                            The Commonwealth filed a Notice of Appeal on December 30, 2015. On January 4,

                                           2016, we ordered the Appellant to file a statement of matters complained of pursuant to Ruic

                                           I 92S(b ), of the Pennsylvania Rules of Appellate Procedure. On January 11, 2016, the

                                           Appellant complied and filed their Statement of Matters Complained of on Appeal Pursuant

                                           to Pennsylvania Rules of Appellate Procedure l 925(b).

                                                           The Appellant appeals for the following reasons. First, the Appellant avers that we

                                           erred in granting the Appellant's petition to withdraw her no-contest Alford plea following

                                           the recantations of the two eldest child victims. Second, the Appellant believes we erred in

                                          granting relief because the recantations could have been discovered by examination of the

                                          victims at trial. Third, and finally, the Appellant avers that the Appellee's pleas to the two

                                          counts of Endangering the Welfare of Children involved consolidated claims involving four

                                                                                                                  2
  I;,



.. ,·,
               ·----------- -·
                          ----------------
                                 ·-·        ...,_ ·- -·-- -·-------~---··--·~~-----~----------------
                                                            ""                                                 .. -----   ------·~----··- . ~---   ---- -----·-··--   ----- ..
                 victims and only two of the four victims recanted.

                 II.             Facts

: 1_,'
                                 At the October 27, 201 S PCRA Hearing, the eldest child accuser, se-.r

                 took the stand to recant his accusations. Se)                          I    was born January 24, 2004. (Notes of

:·   ...         Testimony, 10/27/15, at 10.) Without objection, S~as found to be competent. Id., at
i 1'•

. (·
                 15 .

                                 SJ         ill testified        that the Appellee was his brother B        Al's girlfriend and the

                 family's babysitter. Id., at 16. As to the accusations, S-stated                                  that he had lied to the

                 Children's Advocacy Center (hereinafter: CAC) interviewer. Id., at 17. Specifically,

                 S~told                    this Court that he lied about the Appellee tying him and his siblings up and

                 that the Appellee never forced the supposed victim ses                                 face near     SJ            R's privates.

           J    Id., at 17-18. The impetus for S~to                              lie was that he did not like how the Appcllce had

                treated B9111111,in throwing a ring at B8tn                                 Florida. Id., at 19. Se···state<l                      that he

                had only recently revealed the truth and that the Appellee never hurt him or his siblings. Id.

                                 On cross-examination, S~tated                          that punishment from the Appellee consisted

                of calling the children's mother and that spanking was not utilized. Id., at 21.                                    S4•9
                testified that he was never harmed by touching a heater in a house. Id. S4lillllafurther

                testified that nothing ever happened to him involving his father's drop cloths. Id., at 22. And

                while S~said that he never told the siblings anything about being tied up, on redirect,

                S~                     testified that his siblings told him that the Appellee tied them up during the course

                                                                                    3




                                                                          ·---     -----~-------·-·-·· -··---
•.n




---··-· ··-·· ·-· .. ···-~·-···--·--·   ·--··-···-·····-·-··-··------~~-··~------···-··-·-------·--·-····--·--··········-·------··----··-----··-~---·-·--····-···--····-----··---·-~-   ~·-~---
                                          of a game. Id., at 24-25.
I     •

                                                      Se-admitted                   that he told his younger brother Sp ...                         to go along with the

                                          accusations. Id., at 26. Under questioning by the Court, S~said                                                that he never told any

    I:.                                   of his siblings besides Sp...                     o lie. Id., at 28. S~lso                        stated that not one bit of the

;    · •• 1
                                          story told to his parents, the police, or the CAC interviewer was true. Id., at 30.                                          st911111l
                                          confessed to his father that he had lied about the Appellee around the time that he lied about

                                          unrelated accusations of abuse. Id., at 30-31. Finally, during re-cross examination, SJ§

                                          stated his belief that he and his brother Sp

                                          being shoved into Sc                  I( 's privates together. Id., at 33.

                                                      Following Se -·s                   recantation, S~                              took the stand.         se           was born

                                          September 22, 2005. ld., at 35. No objection having been made, S~was                                                      found to be

                                          competent to testify. Id., at 40.

                                                      SJ     8     told this Court that some of what he had stated in his CAC interview was

                                          untrue. Id., at 40-41. He then went on to testify that he lied about the Appellee holding a

                                          knife to the children's throats and about the Appellee tying them up. Id., at 42. Rather,

                                          SPl!llllistated that the Appellee played games such as "cops and robbers" with the children

                                          and would tie them up with baby wipes. Id. S~went                                          on to say that this behavior was

                                          playful and not mean. Id., at 42-43. S~as                                    clear that the Appellee never hurt the



                                          SJ   £1          told him to and that he had threatened Sp~ith                                    violence ifhe did not go along

                                                                                                                  4
• ··1




  f::




·.n

, ....   :
             ..     .   ...     . .   ..   .   -·-·---------··---------- ··-··----~~---~----·------------------·-          ----····· ------·-   -----
             with the lie. id. Se

                              On cross-examination, Sp.             stated that when tied up (seemingly during the

             aforementioned "cops and robbers" game) he was able to move around and that he was not

             tied to anything. Id., at 45. Like S~                      Sp~estified         that the Appellee punished the
     .. i


:·· ... ·    children with time-outs and through calling their parents. Id., at 46. Sp.                      ] said that the
•,.. ·       Appellee did not spank anyone, nor did she put anyone's face near anyone else's privates.



             Appellee of holding a knife to the children's throats. ld., at 49. Under questioning by the

             Court, S~disagreed                      with   st4lllllltin that Sp I      stated that it was   sci    I   who told

             Sp..              to say something about private areas rather than it being a jointly-crafted story. Id.,

             at 52.




             because he did not want to get hurt by S-who                            threatened him. Id., at 55. He then went

             on to say that Sc?                g   has hurt him in the past. id., at 56.

                              The next PCRA Hearing witness was R~                             who is the father of the

             accusers. Mr. stlllastated that                SeS Si Sp~           Sa.       and S.made         the allegations

             and that sae-and                  s.e,vould      have been three at the time. Id., at 60. Mr. stll9then

             testified that at some point after the Appellee had entered her plea, under questioning from

             Mr.•                 about the accusations, S~broke               down and admitted that the accusations

                                                                           s
':'f




             were a lie. Id., at 62-64. From the time of the incident in Florida, the victims' family, with the

             exception of B_.          had no contact with the Appellee. Id., at 64 and 66-67.

                     Mr. sethen         testified that prior to Se-s          revelation that he had falsely

             accused the Appellee,     seq     l   had made allegations of physical abuse at the hands of

             faculty at S~s          school, which were found to be false. Id., at 65. Sdcl£••also          falsely

             accused his grandmother of abuse. Id. Further, while hospitalized, Se~claimcd to have

             bad sexual relations with another patient, which turned out to be false. Id. Mr. ~tated

             his belief that S-0   I    is knowledgeable about sexual behavior. id.

                     The putative victims' father testified that he was floored by the initial accusations

             against the Appellee because, during the Appellee's time as the family's babysitter, the house

             was tidy, the children were cared for, and the children made no complaints. Id., at 68. The

             accusations of abuse only surfaced some five-to-six months after the incident between

             ~and          the Appellee that occurred in Florida. Id., at 66-67.

                     During the course of his testimony, Mr. S~onfirmed                Sp9,s      accusation that



             ~told       this Court that the two female victims will not discuss their allegations even at the

             prompting of counselors. Id.• at 71.

                     The purported victims' mother,      Ktllll S...      testified that the only victims who

             made accusations to her were Sdlc ••£•and

             allegations recounted by Mr. -            K-added
                                                              Sp-



                                                                 6
                                                                       that   Se-
                                                                          Id., at 73. In addition to the false

                                                                                      has accused ~        of abuse




       ·---1--------···-··----·----·· ····------------------------------·--·-------
    1:,




.     ·'




           Appellee were deemed unfounded and that surveillance video had definitively disproved

           Setlllll's   hospital and school-related accusations. Jd., at 74. Finally,   Kiii testified that,
           following the conflagration between    I9        and the Appellee in Florida, S~"hated"

           the Appellee. Id., at 75.

                   The final PCRA witness was the Appellee who stated that she really had not played

           games with the children. Id., at 81. Moreover, the kids did not play with baby wipes or paint

           rags. Id., at 81-82. The Appellee testified that she plead nolo contendere because she was

           worried how a jury would view the children's accusations and because she was looking at

           serious time in a state correctional facility followed by registration as a sex offender. Id., at

           82. Despite her claim of innocence, the Appellee told this Cou11 that she entered a plea

           because she was afraid to go to trial. Jd., at 83.

           III.    Matters Complained of on Appeal

                   A. Recantation of Victims S.S. and S.S.

                   The Appellant's first two matters complained of are that we erred in granting the

           Appellee's petition to withdraw her Alford plea and that the Appellee was ineligible for

           PCRA relief because she could have garnered the eldest victims' recantations by testing their

           testimony at trial. These two matters are most expeditiously addressed as one and so, in the

           interest of judicial economy, we do so.

                   The Appellee's petition made application for relief via the Post-Conviction Relief Act

                                                            7




           r--------------·---,~-
(hereinafter: PCRA) and its thrust is based upon the recantation of the accusations made by

the two eldest child victims. "To be eligible for PCRA relief, the burden rests upon the

PCRA petitioner to establish by a preponderance of the evidence that his sentence resulted

from one or more of the enumerated errors or defects listed in 42 Pa.C.S.A. § 9543(a)(2)."

Commonwealth v. Gajewski, 2014 WL I 0979820, 2 (Pa. Super. Ct. 2014) (quoting

Commonwealth v. Crawley, 663 A.2d 676, 678 (Pa. 1995)).1

        Specifically, in the case sub Judice, the Appellee sought relief under 42 Pa.C.S.A. §

9543(a)(2)(vi), which states, in relevant part:

        (a) General rulc.-To be eligible for relief under this subchapter, the
        petitioner must plead and prove by a preponderance of the evidence all of the
        following:



           (2) That the conviction or sentence resulted from one or more of the
        following;



              (vi) The 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.

See Gajewski, supra, at 2. Though the Appellee's sentence resulted from a plea of guilty

rather than as a result of trial, '"[a]ny after-discovered evidence which would justify a new



I We are cognizant that our reliance upon an unreported Superior Court decision does not place us on the
firmest of footings; however, our review of relevant case law leads us to believe that a PCRA petition to
withdraw a pica based upon after-discovered evidence is an atypical event. Moreover, Commonwealth also
cited this case at the PCRA Hearing. (Notes of Testimony, 10/27/15, at 4.)
                                                        8




                                            -----·-·----·               . ····•···· ...   -··-   ··-··   ·-·-------- ·-··---·-······---···------·--------   - -··------
    I   f:




                                 --------- .. ·····-·-· ----   --····----------   ------ ·--~   ~---······-······-···----··------·---
              trial would also entitle defendant to withdraw his guilty plea."' Id. (quoting Commonwealth
.       ,•


              v. Peoples, 319 A.2d 679, 681 (Pa. 1974)).2

                       Believing that the Appellee's petition was properly before us, we turn to the

              mechanics of dispensing with such a PCRA petition. In Commonwealth v, Gajewski, the

              Superior Court states that,
;_      ··:

                       "[t]o obtain relief based upon newly-discovered evidence under the PCRA, a
                       petitioner must establish that: (l) the evidence has been discovered after trial
                       and it could not have been obtained at or prior to trial through reasonable
                       diligence; (2) the evidence is not cumulative; (3) it is not being used solely to
                       impeach credibility; and (4) it would likely compel a different verdict."

              Id. (quoting Commonwealth v. D 'Amato, 856 A.2d 806, 823 (Pa. 2004)); See also

              Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009) and Commonwealth v. Williams,

              732 A.2d 1167, 1180 (Pa. 1999). In performing our analysis, we bear in mind that

              "[r]ecantation testimony is considered extremely unreliable" and that we should deny

              requests for a new trial unless we are satisfied that the recantation is true. Commonwealth v.

              Nelson, 398 A.2d 636, 637 (Pa. 1979) (citing Commonwealth v. Coleman, 264 A.2d 649, 651

              (Pa. 1970)). However, "[i]t is up to the trial court to judge the credibility of the recantation."

              Id. (citing Commonwealth v. Sanabria, 385 A.2d 1292, 1298 (Pa. 1978)).

                                The first bar the Appellee needed to overcome was a showing that the

              proffered evidence was discovered after her plea and that it could not have been discovered


              2 As a result of this precept, we believe we can reference cases that follow more common fact patterns that are
              distinguishable from our own by virtue of their having gone to trial. In fact, the ever useful Standard
              Pennsylvania Practice discusses the topic of recantation exclusively through the lens of cases that were resolved
              through trial. 27 Standard Pennsylvania Practice 2d § 135:450 After-discovered evidence-Recantation.
                                                                       9




                                                                                                                                        ---·--···-·   --·--···   ...........•
:.· ·



                    .... ,.-·     _                     --------------·-···-·----
                                prior to or at the time of trial. None of the accusations in this case have been put to the test. It

                                is true that this is because of the Appellee's decision to enter an Alford plea; however, the

                                Appellee was facing the accusations offour child victims who were accusing her of crimes

 t;;,
                                so heinous that, in similar cases, we must always summon enlarged jury panels to

                                accommodate the number of jurors who are disqualified because of their inability to hear
   ,.
 . '

                                evidence of crimes against children. Nonetheless, the Commonwealth opines that the

                                Appellee could have obtained the recantations through trial. We believe this is inapposite to

                                the procession of this case.

                                              When the Superior Court in Grajewski, supra, indicates that any after-discovered

                                evidence that would justify a new trial will justify the withdraw of a guilty plea, we believe

                                they were considering the plea as a stand-in for the trial. As such, Appellant is seeking to

                                require the impossible. If Commonwealth were to be correct in their contention then no plea

                                could be overturned by after-discovered evidence as the defendant would have never tested

                                the witnesses at trial. Rather, the only sensible conclusion is that we must consider that which

                                was known to the Appellee at the time of her plea. As Appellee had no contact with the

                                victim's family, she was in no position to garner any recantations of the accusations. And as

                                for due diligence of counsel, we fail to see how, with the procedural history of this case,

                                defense counsel could have been expected to probe for a recantation prior to trial. We

                                encountered no evidence that might or should have triggered counsel to try and communicate

                                with minor victims who are unable to consent to being interviewed by defense counsel sans

                                                                                    10




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                                                                                                                                        ..........




. ! . ~-.




            parental permission. Absent some scintilla of evidence that the victims might recant, the

            defense would have been engaging in a fishing expedition. Essentially, this case is different

            from those we encountered in our review of the case law because it did not go to trial.

                                     In Commonwealth v. Smith, the Supreme Court of Pennsylvania found that an after-

            discovered evidence claim failed because the witness proffering the evidence admitted in an

            affidavit that, had counsel interviewed her prior to trial, the truth would have been explained.

            17 A.2d 873, 887 (Pa. 2011 ). Again, neither counsel, nor the Appellee, had any notion that

            any of the victims would recant and the victims did not do so prior to the entry of Appellee's

            plea.

                                     In Commonwealth v. Wilson, it was found that the appellant had not shown that he

            could not have obtained the after-discovered evidence at, or prior to, the conclusion of trial

            because direct and cross-examination covered topics relevant to the after-discovered

            evidence at the time of trial. 649 A.2d 435, 448 (Pa. 1994). Here, there was no opportunity

            for cross-examination of the victims. Rather, the Appellee and her counsel were provided

            with copies of Children's Advocacy Center interviews, which, by their nature, are produced

            without the input or participation of the defendant.

                                    The evidence was discovered after the Appellee's Alford plea. As discussed above,

            we do not believe it could have been obtained at or prior to trial through reasonable

            diligence. We remember that the Appellee's burden here was preponderance of the evidence,

            which is oft-defined as fifty percent plus one. See 42 Pa.C.S.A. § 9543(a)(2){vi). The

                                                                                                            11




            ·-·······-   .   - -----------~   -- - -.--~- ·---------   ·--··   -·-··--·------------·-·-----------······---------   -   ,__   .. -    -· ------------------   ---   -------   ,
                          ............ ,




                                                                                                          I
                                                                                                    ... --1------ - --
    Appcllee cleared the first PCRA hurdle. We therefore believe that the Commonwealth's
                                                                                                          1
    second matter complained of is without merit and so we humbly seek affirmance on this

    point of contention. As the Commonwealth's first matter complained of avers that we erred

    generally in our granting of the Appellee's petition, we continue on with our analysis.

           The second obstacle for the Appellee was that the after-discovered evidence could not

    be merely cumulative. As the recantations were first aired at the PCRA Hearing and they

    flew in the face of the evidence offered up to and at the time of Appellee's plea, we did not

    find them cumulative.

           The third thing that the Appellee needed to show to succeed in her petition was that

    the recantations were not being used solely to impeach credibility. Here it is clear that the

    recantations would be substantive evidence of what may have occurred when the children

    were in Appellee's care and to impeach the credibility of the younger siblings whose

    accusations form the basis of Commonwealth's third matter complained of, which is

    discussed infra. As the evidence was not offered solely to impeach credibility, the Appellee

    surmounted the third potential impediment to her being granted relief.

I          Fourth, and finally, the Appellee needed to show that the after-discovered evidence
I
! would likely compel
I
                          a different verdict. The initial accusations were brought by children.

    Yet, those accusations are due no less consideration than those of adults. S•   U 3 and
    Si:4illll formed half of the witnesses to the events that the Commonwealth alleged were

    crimes and to which Appellee plead. For half of the accusers to recant is a tremendous blow

                                                   12
                          -----···-·-··--···-· .. ···-.   ········-- ·- ··-- ·--- ------ ------·------   ---
                          to a successful prosecution that is compounded becau;;s~~~dSp..,s                                                                              recantati-;;,;~·

                          call into question the verity of the stories of the remaining witnesses. This is similar to the

                      I circumstance                            in Commonwealth v. Medina, wherein the recantation of one witness so
                      I

-I
                      I severely undercut that of a witness known to have credibility issues that it led the Superior
                          Court to agree with the trial court that there was a strong likelihood of a jury reaching a

                          different verdict. 92 A.3d 1210, 1219-20 (Pa. Super. Ct. 2014). Both Se8                                                                    J and S~
                      I testified that the Appellee                                        never harmed any of the children. Much like the incredible witness

                      I in Medina, S...                                    nd sewere                       so young at the time of the events in question that it is
                      I
                          likely a jury would find the recantations overpowering.3 As such, there is a distinct

                          possibility that the recantations would compel a different verdict.

                                               Up to this point, we have referred to S~                                        and Sitlll's           recantations as credible

                          without stating why we found them more compelling than their CAC interviews. We turn

                          next to those interviews.

                                                During his CAC interview, Se-stated                                          that an example of a lie would be that,

                          "[he] got hit by [Appellee]." (Children's Advocacy Center Interview, 7/3/14, at 9:51:20.)

                          Then, in contradiction to his own statement, after the interviewer asks if Appellee had ever

                          hit him, semi.answers                                              in the affirmative. Id. Next, S~recounted how he and his

                          siblings were tied up on two separate occasions with his father's paint rags. Id., at 9:52:40.

                          Se-told                                  the interviewer that the children were tied up to a radiator, ld., at 9:55:05, and

                          3 We note that copies ofS6and soas Children's Advocacy Center interviews were not made available to
                          the Court. Therefore, we could not make determinations about their credibility.
                                                                                                                       13




----~   ·----------       ------·------·-----·-- ·--------------------------------------                                              "···-··----· .. ·-------·-·--    -------·----·        ---- --·-   ..
                                                                                      .   -..




  -.
:· -.    i

                 that, as a result, he was burned, Id., at 9:53:00.

                         S~         has an older brother, S.          (Children's Advocacy Center Interview,

                 7/22/14, at 9:44:35.) Inexplicably, S.was            allowed to play video games or nap during this

             I ordeal. (CAC Interview, 7/3/14, at 9:53:00.) Under these facts, it strains credulity beyond that
                 breaking point that an older child was unaware or uncaring regarding the plight of his

   .,i
                 siblings. Se..,went       on to describe how, during this incident, the Appellee proceeded
             ;

             i downstairs after tying up the children and allowed a man to enter the home, which S~

                 knew to be the case because he heard a man's voice. Id., al 9:59:30. This stands in stark

                 contrast to S~'s         claim, minutes later, following the prompting of the interviewer about

                 seeing the man, that he saw the man through a window. Id., at 10:02:50.          Setlllll perhaps
                 realizing that he was supposed to have been chained to a radiator at the time, then hastened to

                 add that the window was closer than he had drawn on a diagram and he was able to see the

                 man enter the home. Id. If S~          had seen the man then he would not have stated he knew

                 a man entered the house based upon his voice. The lie is self-evident.
                                                                       t;t.J
                         Se     J has a younger brother named....,             (CAC Interview, 7/22/14, at

                 9:45:15.) During the first incident of being tied    up,6        is alleged by   st411111 to have
                 been locked in his room. (CAC Interview, 7/3/14, at 9:54:40.) S,                 went on to tell the

                 CAC interviewer that his mother and father saw red marks o··s                    face and that they

                 thought this was the result of heat. Id., at 10:03:05. Selllllli.,then stated that.

                 reddened face was not caused by heat; but, rather, by the Appellee smacking him, which

                                                                 14
                                 ...........




1·:




           SJ        knew to be the case because, though chained to a radiator on the third floor,

           setllll9 heard Aery.                Id. S        could not have observed what, if anything, the
                                                       _S__Lv
           Appellee might have done to redden....               's face.

                  Additionally, during the first incident in which the Appellee is alleged to have bound

           thechildren, Se-              stated that thechildren passed the time agreeing to tell their mother

           and father about the abuse. Id., at 10:05:50 Yet, the children did not tell their parents of the

           abuse at the first opportunity. We are to believe that a cohort of children, mainly under the

           age of ten, maintained their silence about abuse at the hands of their caretaker for months.

           We will not say this is impossible, but we found it to be another instance of implausibility in

      . S~'stale.

                  S~hen              told the CAC interviewer about a second incident in which he and his




      i
           siblings were supposed to have been tied up by the Appellee. Id., at 10:06:10. se11111,

           Sp..     and Sa.re

           were, according to Se~laying
                                         alleged to have been tied up again.Id., at 10:07:40. s•and

                                                        videogames whils.
                                                                                                                      S.
                                                                                                  was,again, in his room. Id.,
      II
           at I 0:07:40. Se              nlleges the Appellee again invited the man from the first incident over

           again and then the Appellee and the man engaged in inappropriate action based upon the

           rocking Se-        says he could overhear. Id., at l 0:06:55. The man makes no appearance in

           Sp..    's CAC interview. Such an obvious detail is telling in its absence.We did not find

           Se        credible at all in his story of the Appellee bringing a random man into the home on

           two separate incidents in which some of the children were tied up. Of course, three children

                                                                  15




                    --------·-·----~---·                    --------·-·---···---·------·-·   -~·-····-- ..·--···-                -,   .
                                                                              ........




I;,




          were free during the second alleged incident yet they did not liberate their siblings who were

          held captive. We are incredulous that the children who were not bound would have been

,.    .   mollified by video games and accepting of a man entering the home for inappropriate liasons.

                 Se..        told the CAC interviewer that during the second incident, the Appellee

          grabbed So..      s head and placed it near his privates and told   s<>9to "do it." Id., at
          10:08:20. S~was          supposed to have been present and watching this. Id. S                  stated



          interview in which he stated that both S~            and So.were           wearing clothes during this

          specific part of the second incident. (CAC Interview, 7/22/14, at 10:07:30.)

                 In Sp9's       CAC interviews, he stated that the Appellee used to put him in time out

          and hit him. Id., at 9:56:50. Questioned about this, SP91tsaid        that the Appellec smacked

          him on the hands and nowhere else. Id., at 9:58:50. Further, Sp      81        :tated that the Appellee

          only ever hit his siblings on their hands or butts and nowhere else. Id., at 10:01 :50. Once into

          the meat of the story, in contrast to Se-,      SPlllladded        that the children were bound

          with baby wipes and paint rags. Id., at l 0:04:20. Sptll    also added that the children were



          interview credible when he diverged so greatly from Se-             on a detail as important as

          location. Granted, Sr4lllagreed that the children were bound on the third floor; however,

          he added the kitchen, which never surfaced in Setllllllll's account. As S~lleges                 that

          the children were bound in the kitchen on the first day, Id., at 10:05: 10, our doubts about his

                                                          16
 .,
                             -··    ··-    -          -·-·-----··---·········                  -.   -   ..   -·-------·--·---·-···-   ·-·-------·--·-·- .. ······- ..-   ··-
                           and Se          's stories increased. setlllllclearly                              stated that he viewed a man enter the

                           home from the third floor during the first incident. We could cite more inconsistencies that

t,.:
                       I   led us to believe that       se9111 and Srtllllts              CAC interviews were not credible; however,
                       I
                           we believe the point has been made.

                                    It is undeniable that there were some consistencies amongst the inconsistencies of

                           se9mlland           si:tllllls        CAC interviews. Yet, we are cognizant of the fact that some

                           nineteen days elapsed between the interviews during which Se-could                                                 apprise Si9il

                           of what was to be expected of him. Again, during his credible recantation, Siilllllinformed

                           the Court that he lied in his CAC interview because S~                                            had threatened to harm him if

                           he did not. Mr. Stllconfirmed                        that Se-has been violent towards Sp...

                                    In Grajewski, cited supra, the PCRA court actually found the supposed recantation to

                           confirm rather than undercut or dispel the allegations. 2014 WL 10979820, 2 (Pa. Super. Ct.

                           2014). Here, we were convinced that the recantations were credible. Unlike the unsworn

                           accusations in the CAC videos, which we found to be contradictory, S~                                                  and SJtllll's

                           recantations were consistent in the main and were convincing to this Court.

                                    The Appellee having met all of the requirements for relief under the newly-

                           discovered evidence portion of the Post-Conviction Relief Act, relief was granted. We do not

                           believe we erred in granting the Appellee's petition for PCRA relief and we respectfully

                           request affinnance as to Commonwealth's first matter complained of.



                                                                                          17




---·-- -··- · . , . _ -·"·- ---·· - - - -·-· ·---------- . -· · · -· -.•·-· -· ~·--·- . - ---·- -"·-· ·- · · . · - . ----------------·-·-·- . -·----i . -· · ·
: .:   .   ~           B. Remaining Accusers                  . . . .. . . . .       .. . . .. .   .

 ···       1           The Appellant's third matter complained of is that the Appellee plead guilty to two

               counts of Endangering the Welfare of Children and that each count involved a consolidated

               claim involving four victims. Therefore, the Appellant avers, we erred in allowing the

               Appellee to withdraw her plea and reinstating her trial rights when only two of the four

               victims recanted.

                       The amended information added two counts of Endangering Welfare of Children

               (hereinafter: EWOC). (Transcript of Testimony, 5/8/15, at 2.) The Commonwealth stated to

               this Court that these charges addressed two children. Id. We queried, "[s]o there's [sic] two

               children?" And the Commonwealth replied: "Correct." id. The Commonwealth then went on

               to state that there was to be no contact with the victims and listed four; however, we see no

               specificity in the transcript as to which victims are addressed by the two distinct EWOC

               charges. ff it is the Commonwealth's contention that the two counts of EWOC address

               consolidated charges for four victims each then we are left to wonder why the

               Commonwealth responded that the counts plead to addressed two children. It is certainly not

               memorialized in the amended information. We believe it was contemplated that the Appcllce

               plead to charges addressing but two victims. Yet, we admit, it is confusing to attempt to parse

               so brief a portion of transcript and four victims' names were recounted, so we move on to our

               analysis.

                       It is true that two of the purported victims did not testify at the PCRA Hearing;

                                                              18
                                                                                                                                                                                         .-... .




. !'.:.




  ~-·-···-- ···-•·••·•-· • •· --   -•-'"• ---·•·····-------   ·• • ----~~·-•••"•·•·•·· •• • •• •• ·•·· ·• -····' • ·•-·•·•·- ------···••   , - ·r--•·•---•· •• ·•-•••••
                                                                                                                                                                     ••• ••••' • •· •,.., •.., -•·· •••• • """'" -··-----·   ···"'··-•---- ·•••• ··--·-•"'" • •• • ·•

                                    however, the two supposed victims who did testify called into question the allegations of all

                                    of the victims through convincing recantations that necessarily lead to a finding that the

                                    youngest victims may have lied as well. Ultimately, this would be for a jury to decide. When

                                    two of the four children state that none of the children were tied up or abused by the

                                     Appellee, one wonders if, perhaps unwittingly, but nevertheless, the Commonwealth

                                     proffered evidence that amounts to lies. In light of recantations that call into question the

                                     truth of s•and                            S.s                   accusations, to refuse to revisit the issue would be to cast aside

                                     the most fundamental notions of justice. We therefore pray for affirmance as to this matter

                                     complained of.

                                     IV.                Conclusion

                                                        Based upon the reasons stated above, this Court respectfully urges affirmance of the

                                     Order entered in this case on November 30, 2015.



                                                                                                                                            BY THE COURT,




                                                                                                                                 ~
                                                                                                                                     2 -~ . , . ~ /:-;? ~--'-·
                                                                                                                                            _.;,~-/~C--·
                                      DA TED: April                        _J_, 2016                                                       "MICHAELE. BORTNER, JUDGE




                                                                                                                                              l9




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