J-S26033-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARLENE L. DYNE                            :
                                               :
                       Appellant               :   No. 1736 WDA 2019

      Appeal from the Judgment of Sentence Entered September 26, 2019
      In the Court of Common Pleas of McKean County Criminal Division at
                        No(s): CP-42-CR-0000427-2018


BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                            FILED JUNE 30, 2020

        Marlene L. Dyne (Dyne) appeals the judgment of sentence entered by

the Court of Common Pleas of McKean County (trial court) contending that the

after-discovered evidence claim in her post-sentence motion was improperly

denied. We affirm.

        Dyne was charged with two summary offenses: driving without a license

(75 Pa.C.S. § 1501(a)) as well as driving while operating privilege is

suspended or revoked (75 Pa.C.S. § 1543(b)).1 The alleged offense date was




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*   Retired Senior Judge assigned to the Superior Court.

1 Dyne was acquitted as to the related charge of criminal mischief, and her
acquittal as to that offense is not at issue in the present appeal.
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May 19, 2018, and the trial was held on August 19, 2019. The central issue

as to both summary offenses was whether Dyne was driving.

        The chief Commonwealth witness, Bradly Lewis, testified at trial that on

the evening of May 19, 2018, he was alone in his hunting cabin in McKean

County. He was initially alerted by the sound of a crash, followed by banging

on his front door. After he came outside, he saw Dyne, who he had known

personally for about a year. Lewis saw Dyne walking away from the cabin

toward a yellow Chevrolet Cavalier parked next to his own truck, which was

visibly damaged from a collision with the Chevrolet. When Lewis approached

Dyne, she attacked him with a “claw hammer.” After the scuffle, Dyne got

into the driver’s seat of the Chevrolet and drove away, and Lewis reported the

incident to the police.

        Officer Matthew Batzel testified that he responded to the scene of the

incident later that night. During his investigation, Batzel located Dyne at her

residence a few miles away from Lewis’ cabin.          He noted that the yellow

Chevrolet was parked at that home. The officer then filed charges against

Dyne.

        Dyne testified at trial that she was not driving the Chevrolet, but rather,

her friend, William Wittenburg had taken the wheel that evening.               She

admitted to attacking Lewis with a hammer, but claimed that he was the initial

aggressor.    She also claimed that Wittenburg agreed to give her a ride to

Lewis’ cabin so that Dyne could confront him about his extra-marital romantic


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involvement with Dyne’s friend. However, Wittenburg did not testify and Dyne

presented no further evidence to support her testimony.

      The trial court found Dyne guilty of the two summary offenses. As to

the driving without a license count, Dyne was released on her own

recognizance pending appeal.    As to the other summary offense, she was

sentenced to a jail term of 60 days and a fine of $500.

      In a post-sentence motion filed on September 27, 2019, defense counsel

represented that Dyne had listed Wittenburg as a material witness pre-trial,

but that counsel was unable to contact him until after the trial was over. The

motion stated that on September 25, 2019, Wittenburg told counsel that

although he did not remember the events of May 19, 2018, Dyne’s account

was possibly accurate. Wittenburg recalled having driven Dyne in the yellow

Chevrolet on several occasions prior to the alleged offense date. However,

Dyne’s post-sentence motion did not include an affidavit from Wittenburg.

      The trial court denied Dyne’s post-sentence motion finding that new

evidence did not entitle her to a new trial because Dyne should have been

able to reach Wittenburg in time to have him testify, and even if presented to

a jury, his testimony would be too vague to make a more favorable verdict

likely. See Trial Court Opinion, 12/23/2019, at 2-3.




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       Dyne timely appealed the judgment of sentence after her post-sentence

motion was denied,2 raising the sole issue of whether her after-discovered

evidence claim was properly denied without a hearing. Both Dyne and the

trial court complied with Pa.R.A.P. 1925.3

       Pa.R.Crim.P. 720(C) provides that “[a] post-sentence motion for a new

trial on the ground of after-discovered evidence must be filed in writing

promptly after such discovery.” In order to obtain relief, a defendant must

“demonstrate the new 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. Pagan, 950 A.2d 270, 292 (Pa.

2008); see also Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018)

(same).




____________________________________________


2 The timely filing of a post-sentence motion tolls the 30-day filing period for
a direct appeal. See Pa.R.Crim.P. 720(A).

3  The trial court’s denial of Dyne’s motion is reviewed under an abuse of
discretion standard. See Commonwealth v. Woeber, 174 A.3d 1096, 1108
(Pa. Super. 2017) (“When we examine a trial court’s decision to deny a new
trial on the basis of after-discovered evidence, ‘we ask only if the court
committed an abuse of discretion or an error of law which controlled the
outcome of the case.’” (quoting Commonwealth v. Padillas, 997 A.2d 356,
361 (Pa. Super. 2010), and Commonwealth v. Bonaccurso, 625 A.2d 1197,
1199 (Pa. Super. 1993)).

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      “[A]n appellant must show by a preponderance of the evidence that

each of these factors has been met in order for a new trial to be warranted.”

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007). A trial

court may summarily rule on a post-sentence motion when it is determined

that no hearing is necessary to resolve it.     See Pa.R.Crim.P. 720(B)(2)(b)

(“The judge shall also determine whether a hearing or argument on the motion

is required, and if so, shall schedule a date or dates certain for one or both.”).

      In Small, our Supreme Court clarified that after-discovered evidence is

insufficient to merit relief if

      it is of the same character and to the same material point as
      evidence already adduced at trial. It is clear the terms “of the
      same character” and “to the same point” refer to distinct qualities
      of evidence; to be “merely corroborative or cumulative,” newly
      discovered evidence must tend to prove material facts that were
      already in evidence at trial, and also be of the same grade or
      character of evidence as that produced at the trial to prove those
      material facts. If the new evidence is of a different and “higher”
      grade or character, though upon the same point, or of the same
      grade or character on a different point, it is not “merely”
      corroborative or cumulative, and may support the grant of a new
      trial based on after-discovered evidence.

189 A.3d at 974 (citations omitted).

      The critical fact question at trial here was whether Dyne was the driver

of a yellow Chevrolet that damaged Lewis’ truck on May 19, 2018. As proof

of that allegation, the Commonwealth presented direct testimonial evidence

from Lewis, an eyewitness who identified Dyne as the driver.         In her own

defense, Dyne testified at trial that Wittenburg was the driver. Dyne then

argued in her post-sentence motion that Wittenburg’s newly discovered

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statements would have been credible evidence of her innocence, making her

acquittal more likely than not.

      Importantly, though, Wittenburg’s statements could only tend to prove

circumstantially the same material point as Dyne’s own testimony – her

professed identity as a passenger. Wittenburg’s vagueness and uncertainty

made his statements of a lower grade or character than Dyne’s testimony.

Unlike Dyne, who swore definitively that she was not the driver on May 19,

2018, Wittenburg only said this was possibly true, and he was unwilling or

unable to attest to that fact in a sworn affidavit.

      Because Dyne put forward after-discovered evidence that fits the

definition of “merely corroborative or cumulative,” the trial court did not abuse

its discretion in summarily denying Dyne’s post-sentence motion.           Having

affirmed the trial court’s order on this basis, it is unnecessary for this Court to

determine whether Dyne satisfied the remaining factors of an after-discovered

evidence claim. See Commonwealth v. Solano, 129 A.3d 1156, 1180 (Pa.

2015) (“As this test is conjunctive, failure to establish one prong obviates the

need to analyze the remaining ones.”); see also Small, 189 A.3d at 976 n.12

(suggesting that if after-discovered evidence is merely corroborative or

cumulative, it will inform the court’s analysis as to whether the evidence would

make a different verdict likely).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2020




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