J-S53011-12


                                 2015 PA Super 4

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                   Appellee                :
                                           :
           v.                              :
                                           :
DONTEZ PERRIN,                             :
                                           :
                   Appellant               :   No. 1166 EDA 2011

       Appeal from the Judgment of Sentence of November 16, 2010,
           in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No. CP-51-CR-0003284-2008.

BEFORE:         SHOGAN, WECHT, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:               FILED JANUARY 12, 2015

     This matter comes before this Court on remand from the Pennsylvania

Supreme Court “for reconsideration in light of Commonwealth v. Castro,”

93 A.3d 818 (Pa. 2014).        After so doing, we grant the request of Dontez

Perrin (Appellant) to remand for a hearing based upon after-discovered

evidence, and remand the case for further proceedings consistent with this

opinion.

     The procedural history of this case is as follows. Appellant appealed

from his November 16, 2010 judgment of sentence of an aggregate term of

five to ten years’ imprisonment following his convictions for aggravated

assault, robbery, criminal conspiracy, and possession of an instrument of




*Retired Senior Judge assigned to the Superior Court.
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crime.1 Appellant asked this Court to remand the case for a hearing based

upon after-discovered evidence. After reviewing the relevant law, including

this Court’s decisions in Commonwealth v. Rivera, 939 A.2d 355 (Pa.

Super. 2007), and Commonwealth v. Castro, 55 A.3d 1242 (Pa. Super.

2012) (en banc), we granted Appellant’s request and remanded the case for

further proceedings. Commonwealth v. Perrin, 59 A.3d 663 (Pa. Super.

2013). The Commonwealth filed a petition for allowance of appeal with our

Supreme Court. On June 16, 2014, that Court reversed this Court’s Castro

decision.   By order of October 2, 2014, our Supreme Court granted the

Commonwealth’s petition for allowance of appeal in the instant case,

vacated this Court’s order, and remanded the case to us for reconsideration

in light of its Castro opinion.

      We discussed the facts of the instant case in detail in our prior opinion,

see Perrin, 59 A.3d at 664-65, and need not reiterate them herein. Suffice

it to say that Appellant’s convictions were based primarily upon the

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

joined him and Amir Jackson in committing the robbery of the victim,

Rodney Thompson.2       Perry acknowledged that he was testifying for the


1
  18 Pa.C.S. §§ 2702(a), 3701(a)(1), 903(a)(1), and 907(a), respectively.
In addition, Appellant was found guilty of a number of other crimes for which
no further penalty was imposed.
2
  Thompson, who knew the other two men who attacked him but had not
seen the third man before the night of the robbery, also testified at


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Commonwealth pursuant to a deal with the federal government, by which he

could receive a significantly lighter sentence for federal charges stemming

from his participation in the instant and other robberies in exchange for his

cooperation with the prosecution.

      On June 6, 2011, well after Appellant’s trial and sentencing but while

his direct appeal was pending, the District Attorney’s Office forwarded to

Appellant’s counsel a communication from the FBI. The document contains

Agent Joseph Majarowitz’s summary of a May 9, 2011 interview with Curtis

Brown, who had been incarcerated with Perry.        Brown stated that Perry

spoke of testifying at trial in a state court case against Appellant.     Perry

indicated that he testified that Appellant was involved in the robbery

because “someone had to ‘go down’ for it,” but that Appellant was not

actually involved in the crime. FBI Form FD-302, 5/18/2011.

      This document formed the basis of Appellant’s petition to remand the

case for a new trial or to pursue an after-discovered evidence petition with

the trial court. In granting Appellant’s petition and remanding the case for a

hearing, we offered the following discussion.

            “A post-sentence motion for a new trial on the ground of
      after-discovered evidence must be filed in writing promptly after
      such discovery.”     Pa.R.Crim.P. 720(C).     “[A]fter-discovered
      evidence discovered during the direct appeal process must be
      raised promptly during the direct appeal process, and should

Appellant’s trial. However, Thompson’s testimony was less definite than
Perry’s, as Thompson had given conflicting descriptions of the third attacker
and failed to identify Appellant consistently.


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     include a request for a remand to the trial judge....”
     Pa.R.Crim.P. 720, Comment. Having determined that Appellant
     has followed the proper procedure, we turn to the merits of his
     request for relief.

           To obtain relief based on after-discovered evidence,
           appellant must demonstrate 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.

     Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84, 109
     (2009) (quoting Commonwealth v. Pagan, 597 Pa. 69, 950
     A.2d 270, 292 (2008)).

            The Commonwealth does not contend that Appellant failed
     to exercise reasonable diligence in discovering Brown’s evidence
     prior to the conclusion of trial. With Brown informing the FBI of
     Perry’s statements about Appellant’s innocence months after
     Appellant was sentenced, we are satisfied that Appellant has met
     the first prong of the after-discovered evidence test. Further, as
     no evidence was offered at trial to demonstrate that Appellant
     did not participate in the robbery, the second prong is satisfied.

            Addressing the remaining two prongs of the test, the
     Commonwealth argues that Brown’s statement would solely be
     used for impeachment purposes, and that “it is unlikely that a
     vague, secondhand statement from an inmate whose motives
     and connections to [Appellant] and Perry are unknown would tip
     the weight of the evidence in his favor and cause the finder of
     fact to acquit him.” Commonwealth's Brief at 11. We agree that
     it is not clear from the scant evidence before us that Appellant is
     entitled to a new trial. However, we need not decide these
     issues in the first instance.

          We find instructive this Court’s decisions in [Rivera] and
     [Castro].

           In Rivera, after the trial, the Commonwealth’s laboratory
     technician, who testified as to the weight and type of drugs that



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     the appellant was accused of possessing, was “exposed as a
     corrupt and criminal individual who had abused her position of
     trust with the Philadelphia Police Department and had been
     charged with stealing drugs from the lab.” Id. at 357. Noting
     that it was “likely that a new trial is warranted in this case,” id.
     at 359, we nonetheless followed the proper procedure and
     remanded the case for an evidentiary hearing to allow Rivera to
     make his case to the trial court that the after-discovered
     evidence met the four-prong test discussed above.

           Similarly, in Castro, the Philadelphia Daily News published
     an article, after Castro’s trial, alleging that the police officer who
     had testified against Castro [(Officer Cujdik)] had engaged in
     corruption and falsification of evidence when conducting a drug
     raid unrelated to the charges against Castro. Castro, 55 A.3d at
     1244–45. Based upon this article as after-discovered evidence,
     Castro moved for a new trial. The trial court denied the motion,
     determining that the new evidence had no purpose other than to
     impeach the credibility of the officer. Id. Relying on Rivera,
     this Court, sitting en banc, vacated Castro’s judgment of
     sentence and remanded the case for a hearing on the after-
     discovered evidence claim, stating as follows.

           The issue presently before us speaks to fundamental
           fairness. Had the news article been published four
           days before, rather than four days after Castro’s
           trial, he would have almost certainly been granted a
           continuance to test the allegations. We do not yet
           know whether Castro will be able to present a
           sufficient quantum of evidence to warrant vacating
           his conviction, but the potential for uncovering
           exculpatory evidence makes it more than probable
           that a trier of fact would come to a different
           conclusion. To deny Castro the opportunity to assert
           a proper defense at this time would exalt form over
           substance, which this Court declines to do.

     Id. at 1249.

          In the instant case, Appellant’s after-discovered evidence
     does more than call a key witness’s testimony into question
     based upon information that that witness was accused of bad
     acts related to some other criminal cases.        Appellant has



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      evidence from the FBI that Perry, the key witness at trial given
      Thompson’s inconsistent identification of Appellant, admitted
      that he perjured himself and that Appellant had nothing to do
      with the crime. We do not know at this point the extent of the
      statements against his interest that Perry made to Brown, or
      how much the evidence will point towards impeachment of Perry
      versus exculpation of Appellant. Because this evidence is
      even more pointed toward Appellant’s innocence than the
      evidence at issue in Rivera and Castro, we find it appropriate
      to remand the case to allow Appellant to flesh-out his claim for a
      new trial before the trial court.

Perrin, 59 A.3d at 665-67 (emphasis added).3

      We now consider whether a different result is warranted given our

Supreme Court’s reversal of this Court’s Castro decision.       The Supreme

Court granted review in Castro to decide the following issue: “Is it possible

to meet the test for after-discovered evidence where the defendant proffers

no evidence, but instead relies on a newspaper article?” Castro, 93 A.3d at

824. After agreeing with the parties that the newspaper article at issue was

not itself evidence, but rather a collection of “allegations that suggest such

evidence may exist,” id. at 825, the Court went on to offer the following

guidance about what is required of a criminal defendant making an after-

discovered evidence claim.

            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

3
  Judge Shogan filed a dissenting opinion, opining that Appellant had failed
to demonstrate that Perry’s statement would be used for a purpose other
than impeachment.


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      evidence that will be presented at the hearing. Simply relying
      on conclusory accusations made by another, without more, is
      insufficient to warrant a hearing. The article here mentioned
      individuals who may have been relevant witnesses in the end, as
      well as a video tape and an ongoing investigation regarding
      Officer Cujdik. The motion says nothing about which, if any, of
      this potential evidence appellee would rely on to support his
      request for a new trial. Absent identification of the actual
      testimony, physical evidence, documentation, or other type of
      evidence to support the allegations of Officer Cujdik’s
      wrongdoing, we cannot conclude appellee had evidence to offer;
      to conclude otherwise would be speculation.

Id. at 827 (footnote omitted).

      Applying these pronouncements of our Supreme Court to the facts of

the instant case, we see no reason to alter our original analysis or

conclusion.   The proof of after-discovered evidence at issue offered in the

instant case is a document generated by an FBI agent detailing a

conversation in which Perry admitted that Appellant did not participate in the

crimes for which he was convicted, not a newspaper article alleging a

witness’s acts of impropriety in an unrelated matter.

      Further, Appellant described the evidence he will offer at the hearing

with sufficient specificity to satisfy our Supreme Court’s requirements.    In

Castro, Castro did not identify in his petition the witnesses he wished to call

to support his claim.   See Castro, 93 A.3d at 827 n.14        (“At argument,

[Castro’s] counsel stated that he had spoken with the reporters who

authored the article and the FBI agents involved in the investigation, and he

would offer them as witnesses; however, [Castro’s] motion did not mention




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these witnesses”). In stark contrast, Appellant’s petition for remand clearly

states that, if granted an evidentiary hearing, he will call Lynwood Perry and

Curtis Brown, as well as FBI Special Agent Joseph Majarowitz, as witnesses

to offer exculpatory evidence and establish that a different result would

obtain if Appellant is granted a new trial. Petition for Remand, 1/19/2012,

at 2-3.

      Accordingly, we again grant Appellant’s petition for remand, and

remand this case for an evidentiary hearing and a trial court determination

of whether a new trial is warranted.

      Petition for Remand granted. Case remanded for further proceedings

consistent with this opinion. Jurisdiction relinquished.

      Judge Wecht joins the opinion.

      Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/12/2015




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