J. A29003/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                     v.                     :
                                            :
DORIAN WILLIAMS,                            :         No. 1671 WDA 2014
                                            :
                          Appellant         :


             Appeal from the Judgment of Sentence, April 7, 2014,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0016576-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED DECEMBER 18, 2015

        Dorian Williams appeals from the judgment of sentence of April 7,

2014, resulting from his conviction of first-degree murder.1 We affirm.

        The trial court recited the following relevant facts:

                    In August of 2012, Appellant and Susan
              Hammond were living together in an apartment at
              2102 Patricia Lane, in North Versailles, Allegheny
              County. They had been dating for approximately
              six months at that juncture. In the evening hours of
              August 26, 2012, Appellant and Hammond returned
              to their apartment after visiting Hammond’s sisters,
              Ameshia and Ashley Hammond.           Appellant and
              Hammond argued during that visit, and continued to
              argue when they returned home.

                    Shortly before 11:30 P.M., Dorrian Freeman,
              Appellant’s brother, arrived in the parking lot of
              2102 Patricia Lane along with their mother,
              Barbara Freeman-Moore. Freeman-Moore was living

1
    18 Pa.C.S.A. § 2502(a).
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          with Appellant and Hammond at the time but did not
          have a key for the apartment and had to be let into
          the building by Appellant or Hammond. Appellant
          and Hammond exited the apartment together and let
          Freeman-Moore into the apartment. Hammond was
          on her way to work as a nurse, and Appellant
          followed her to the parking lot, apparently intent on
          continuing the argument. As Hammond walked to
          her car, Appellant approached Dorrian Freeman and
          told him that he was tired of Hammond and stated,
          “I got something for her.” Freeman drove away,
          leaving Appellant and Hammond alone in the parking
          lot.

                Appellant and Hammond continued to argue by
          her car as she attempted to leave for work.
          Hammond entered her car and Appellant also
          entered and continued the argument.         Appellant
          pulled out a firearm, prompting Hammond to exit the
          car and run towards a dumpster. Hammond pleaded
          with Appellant, “Let’s just go inside, let’s just go
          inside.” Appellant chased her and shot her once in
          the back of the head as she ran between two cars.
          Hammond immediately fell over onto one of the cars
          and slid to the ground in a kneeling position, with
          her back against the car. Appellant checked for a
          shell casing in the parking lot before fleeing in
          Hammond’s car at 11:45 P.M.

                 Appellant immediately called a neighbor,
          Carlos Smith, to ask him if he had heard a gunshot
          in the parking lot. Smith stated that he had not.
          Appellant called Smith six more times that
          night/early morning:     four times requesting that
          Smith look outside into the parking lot to make sure
          that no police were present; once at 12:26 A.M.
          requesting that Smith stay on the phone with
          Appellant while he drove back to the apartment
          complex and that Smith notify Appellant if anyone
          approached the parking lot; and a final time at
          12:35 A.M. to thank Smith for his help.              At
          12:35 A.M. Appellant parked Hammond’s car and
          verified that Hammond was still lying between two
          cars, clearly deceased. After that final call to Smith,


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             Appellant ran into the nearby wooded area to await a
             ride he had arranged.

                    At approximately 7:30 A.M. (August 27, 2012),
             a neighbor found Hammond’s body between the two
             cars in the parking lot and called the police. Police
             and paramedics arrived shortly thereafter, and
             pronounced Hammond dead.             Hammond was
             identified, the scene was secured, and neighbors
             were interviewed.

                   Appellant was on probation at the time, and he
             had failed to appear for his scheduled report date in
             August. Consequently, a probation violation arrest
             warrant was issued for Appellant on August 28,
             2012. Appellant was not located until October 29,
             2012, when he was apprehended in the East Hills
             section of the City of Pittsburgh, by the
             U.S. Marshals Fugitive Task Force. Appellant was
             interviewed by homicide detectives on October 29,
             2012, and acknowledged his presence at the scene,
             but attributed Hammond’s murder to a drive-by
             shooting targeting Appellant.      Appellant initially
             stated that he blacked out after the gunshot. He
             later stated during the same interview that he fled
             the scene in Hammond’s car immediately after the
             gunshot because he was the intended target, and
             after returning to the apartment he fled the
             North Versailles area because he had an outstanding
             bench warrant.

Trial court opinion, 4/14/15 at 4-7 (citations omitted).

        Appellant was charged with criminal homicide.2 A jury trial was held

and appellant was convicted of first-degree murder on January 9, 2014.

Appellant was sentenced to life imprisonment without the possibility of

parole on April 7, 2014.       Timely post-sentence motions were filed on



2
    18 Pa.C.S.A. § 2501.


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April 16, 2014; and appellant’s trial counsel, Kirsha Weyandt, Esq., withdrew

as counsel. On May 8, 2014, the trial court appointed Thomas Farrell, Esq.,

as appellant’s counsel. The trial court granted Attorney Farrell an extension

of time to file amended post-sentence motions on August 13, 2014.

Appellant filed an amended post-sentence motion on September 2, 2014,

which the trial court denied on September 9, 2014. Appellant then filed a

timely notice of appeal to this court on October 9, 2014.       The trial court

ordered appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b); appellant complied with the trial

court’s order on January 8, 2015, and the trial court filed an opinion

pursuant to Rule 1925(a).

      Appellant raises the following issues on appeal:

            1.     Whether the trial court abused its discretion in
                   failing to grant a hearing and/or a new trial
                   when the trial court denied the amended
                   post-sentencing motions that requested a new
                   trial based upon the after-discovered evidence?

            2.     Whether the trial court abused its discretion in
                   allowing testimony that Appellant never went
                   to the funeral of the victim when the probative
                   value did not outweigh the danger of unfair
                   prejudice?

Appellant’s brief at 5.

      Appellant’s first issue for our review relates to after-discovered

evidence.   When considering whether an appellant is entitled to relief for

after-discovered evidence, we are subject to the following standard:



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          To be granted a new trial based on after-discovered
          evidence:

                 [Defendant] must demonstrate that the
                 evidence:      (1) could not have been
                 obtained prior to the conclusion of the
                 trial by 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, cert. denied, 555 U.S. 1198 (2009) (quoting
          Commonwealth v. Randolph, 873 A.2d 1277,
          1283 (Pa. 2005), cert. denied, 547 U.S. 1058
          (2006)).    The test is conjunctive; the defendant
          must show by a preponderance of the evidence that
          each of these facts has been met in order for a new
          trial to be warranted.       See Pagan, supra;
          Commonwealth v. Rivera, 939 A.2d 355, 359
          (Pa.Super. 2007), appeal denied, 958 A.2d 1047
          (Pa. 2008).

          ....

          Further, a defendant seeking a new trial must
          demonstrate     he  will  not   use    the  alleged
          after-discovered evidence solely to impeach the
          credibility of a witness.     See Pagan, supra.
          “Whenever a party offers a witness to provide
          evidence that contradicts other evidence previously
          given     by   another   witness,   it   constitutes
          impeachment. . . .” Commonwealth v. Weis, 611
          A.2d 1218, 1229 (Pa. 1992).

          ....

          Finally, before granting a new trial, a court must
          assess whether the alleged after-discovered evidence
          is of such nature and character that it would likely
          compel a different verdict if a new trial is granted.
          See Pagan, supra; Commonwealth v. Moore,


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           633 A.2d 1119, 1136 (Pa. 1993). In making that
           determination, a court should consider the integrity
           of the alleged after-discovered evidence and the
           overall strength of the evidence supporting the
           conviction. Commonwealth v. Parker, 431 A.2d
           216, 218 (Pa. 1981) (stating conflicting accounts are
           inherently unreliable and would not compel different
           verdict in new trial). See also Commonwealth v.
           Washington, 927 A.2d 586, 597 (Pa. 2007) (stating
           exculpatory accomplice testimony should be viewed
           with suspicion where accomplice has already been
           tried and has nothing to lose); Argyrou v. State,
           709 A.2d 1194, 1202-1203 (Md. 1998) (noting
           “cases that have addressed [newly-discovered
           evidence] have focused not simply on the credibility
           of the person offering the exculpatory evidence, but
           on the credibility or trustworthiness of the evidence
           itself, as well as the motive, or other impeaching
           charateristics, of those offering it”). . .

Commonwealth v. Padillas, 997 A.2d 356, 363-365 (Pa.Super. 2010)

(citations formatted), appeal denied, 14 A.3d 826 (Pa. 2010).

     Appellant offers the following letter as after-discovered evidence:

                                                         7-25-14
           To whom it may concern,

                 My name is Joshua Yingling inmate #LN 8033,
           an inmate at SCI Camp Hill. In October 2012 I was
           at Allegheny County Jail in intake with My
           co-defendant Clayton McKinnon. At that time he had
           approached me saying that he had a way that we
           could get out of jail. I asked him what he was
           talking about.    He then told me knew about a
           shooting that had happened to his friends cousin.
           He told me that they didn’t know who did it but there
           was someone in intake with us by the name of
           Dorian Williams that he could blame it on to get out
           of trouble. I told him that would be lying and
           wouldn’t be right, but he then said he don’t care as
           long as he don’t go back to jail. I said that I didn’t
           want anything to do with it. I later heard them


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            talking and Clayton asked Dorian “Yo I heard you
            smoked somebody,” and Dorian said “Naw, they got
            the wrong dude.” I then approached Clayton again
            and told him that what he was doing was wrong and
            that he was lying about something that had nothing
            to do with him. He then told me I was right and that
            he wasn’t going to get involved. I then found out a
            month ago that Clayton did in fact testify against
            Dorian Williams. I know for a fact that Clayton was
            lying on the stand to get out of trouble. I feel it
            wouldn’t be right to hear about this and let another
            man (Dorian Williams) do time for a crime he did not
            do. I know for a fact Clayton was lying. Please get
            in touch with me as soon as you can so I know what
            I can do to help. I just wish I would have known
            sooner so I could have prevented this from
            happening. Please contact me at . . .

            ....

            Sincerely:
            /s/ Joshua Yingling

Docket entry 37.

      There is no dispute that appellant’s after-discovered evidence meets

the first two requirements established by Pagan -- that the after-discovered

evidence could not have been obtained prior to the conclusion of the trial,

and that the after-discovered evidence will not be cumulative or simply

corroborate evidence from trial. The trial court held that appellant failed to

meet the third and fourth requirements under Pagan and, as a result, is not

entitled to a new trial. (See trial court opinion, 4/14/15 at 15.)

      Appellant fails to meet the third prong of the Pagan test because he

has failed to establish that Yingling’s letter does anything other than

impeach McKinnon’s testimony.       Yingling’s letter alleges that McKinnon,


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while in intake at the Allegheny County Jail, decided to falsely implicate

appellant in the victim’s murder. Yingling then states that McKinnon lied on

the stand about appellant’s confession, and that appellant had actually

denied any involvement in the victim’s murder to McKinnon. This evidence

serves no purpose other than to contradict McKinnon’s previous testimony

and otherwise discredit McKinnon. See Weis, supra. Therefore, appellant’s

after-discovered evidence claim has no legal merit.

      Appellant brings to our attention several cases in which defendants

have been granted new trials on the basis of after-discovered evidence

uncovering perjury during trial. See Commonwealth v. Coroniti, 85 A.2d

673, 675 (Pa.Super. 1952) (“If perjury by an essential witness is admitted

or is shown by incontrovertible evidence, a new trial should be granted,

but if there is doubt as to the falsity of the testimony a new trial is properly

refused) (emphasis added) (citations omitted); Commonwealth v. Scott,

426 A.2d 128, 130 (Pa.Super. 1981) (implying that a new trial should be

granted for after-discovered evidence involving perjurious testimony at

trial). (Appellant’s brief at 21.)

      We find that Coroniti is inapposite in the instant case for two reasons:

(1) McKinnon was not an essential witness; and (2) the after-discovered

evidence produced by appellant is not incontrovertible. As discussed below,

and as noted by the trial court, the Commonwealth presented an

overwhelming amount of evidence against appellant at trial. After carefully



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reviewing the trial record, we find that McKinnon was not an essential

witness to the Commonwealth’s case. We also find that the after-discovered

evidence produced by appellant is not incontrovertible. Appellant produced

a letter from an inmate who was with McKinnon and appellant in intake at

the Allegheny County Jail. Without any corroborating evidence that verifies

the contents of Yingling’s letter and indicates that McKinnon did indeed

commit perjury during appellant’s trial, we cannot determine that Yingling’s

letter constitutes incontrovertible evidence as required by Coroniti.

      Moreover, even if appellant’s purpose of using Yingling’s letter was not

solely to impeach McKinnon, we agree with the trial court that the evidence

against appellant, even without McKinnon’s testimony, was overwhelming.

Specifically, the trial court provided the following list indicating the

overwhelming amount of evidence that the Commonwealth presented:

            This evidence included: (1) physical evidence from
            the scene; (2) Appellant’s statement to police where
            he stated that an unknown individual shot Hammond
            as she was walking in the middle of the roadway,
            which was inconsistent with where her body was
            found; (3) Appellant’s statement to William Powell,
            his cellmate in the Allegheny County Jail, wherein
            Appellant admitted to shooting Hammond as he
            chased her and she fell between two cars, which was
            consistent with where Hammond’s body was found;
            (4) testimony that Appellant and Hammond had
            been arguing frequently for months, Appellant would
            have violent outbursts during these arguments, and
            that Hammond and Appellant were arguing that
            evening; (5) testimony that Appellant told his
            brother, “I got something for her” minutes before
            Hammond was shot; (7) Appellant called a neighbor
            to see if he had heard a gunshot immediately after


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            Hammond was shot; (8) Appellant fled the area in
            Hammond’s vehicle and only returned an hour later
            when he verified through his neighbor that no police
            had responded to the gunshot; (9) Appellant fled the
            area and was not located until October 29, 2012;
            and (10) Appellant had been seen with a firearm that
            was consistent with the type of firearm that fired the
            bullet found in Hammond’s skull.

Trial court opinion, 4/14/15 at 15 n.5 (citations omitted).          Given the

overwhelming evidence presented against appellant at trial, appellant has

failed to prove by a preponderance of the evidence that a new trial in which

Yingling were to testify about his conversation with McKinnon would likely

result in a different verdict. Therefore, we find that the trial judge did not

abuse his discretion, and this claim is without merit.

      In his second issue on appeal, appellant alleges that the trial court

abused its discretion by allowing testimony that appellant did not attend the

victim’s funeral.   Specifically, appellant claims that such testimony was

unfairly prejudicial. (Appellant’s brief at 30.) The trial court stated that it

admitted evidence that appellant did not attend the victim’s funeral, “to

show consciousness of guilt given [appellant’s] statement to police that he

loved and cared for [the victim.]” (Trial court opinion, 4/14/15 at 23.)

      When reviewing the admissibility of evidence at trial, we are held to

the following standard:

            Our standard of review regarding the admissibility of
            evidence is an abuse of discretion.            “[T]he
            admissibility of evidence is a matter addressed to the
            sound discretion of the trial court and . . . an
            appellate court may only reverse upon a showing


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             that the trial court abused its discretion.
             Commonwealth v. Weiss, 776 A.2d 658, 697 (Pa.
             2001) (citations omitted). “An abuse of discretion is
             not a mere error in judgment but, rather involves
             bias,  ill   will, partiality, prejudice,   manifest
             unreasonableness, or misapplication of law.”
             Commonwealth v. Hoover, 16 A.3d 1148, 1150
             (Pa.Super. 2011).

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (en banc),

quoting Commonwealth v. Collins, 70 A.3d 1245, 1251-1252 (Pa.Super.

2013), appeal denied, 80 A.3d 774 (Pa. 2013). “The court may exclude

relevant evidence if its probative value is outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.”   Pa.R.E. 403.   “[U]nfair prejudice is defined as ‘a tendency to

suggest decision on an improper basis or to divert the jury’s attention away

from its duty of weighing the evidence impartially.’”    Commonwealth v.

Jemison, 98 A.3d 1254, 1262 (Pa. 2014), quoting Pa.R.E. 403 comment.

     Our cases provide very limited guidance that is analogous to the facts

at issue. We find Williams v. United States, 52 A.3d 25 (D.C. 2012), to

be instructive in this case, despite the difference between the Federal and




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Pennsylvania Rules of Evidence.3       In Williams, the District of Columbia

Court of Appeals stated that, “the failure to attend the funeral of one’s wife

after   her    murder,   when   considered     without   further   information,   is

inconsistent with the way a reasonable person would have acted.” Id. at 41,

citing Allen v. United States, 603 A.2d 1219, 1233 (D.C. 1992)

(Rogers, C.J., concurring). The Williams court further notes that,

              without trial court findings that the probative value
              of     appellant’s     absence     (reflecting   guilt
              consciousness) exceeded the prejudicial impact
              (inflaming the jury), we cannot say as a matter of
              law that the funeral evidence was properly admitted,
              especially because “improper inferences [based on
              defendant’s inaction] are likely to be over-valued by
              juries.”

Williams, 52 A.3d at 41, quoting Allen, 603 A.2d at 1231 (Rogers, C.J.,

concurring).

        Unlike Williams, the trial court here provided a finding of probative

value of appellant’s absence from the victim’s funeral. Specifically, the trial

court noted that appellant made statements to the police that he “loved and

cared for [the victim.]”     (Trial court opinion, 4/14/15 at 23.)       Appellant

showed the police that he had the victim’s name tattooed on his neck with




3
  The District of Columbia has adopted F.R.E. 403. Johnson v. United
States, 683 A.2d 1087, 1099 (D.C. 1996).          The official comment to
Pa.R.E. 403 notes that the difference between the Federal Rules and the
Pennsylvania Rules is that Pennsylvania does not require unfair prejudice to
“substantially outweigh” probative value. Pa.R.E. 403 Comment, see also
Commonwealth v. Boyle, 447 A.2d 250, 254 (Pa. 1982).


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the phrase “all in,” which he indicated to mean that he was “all in the

relationship with [the victim.]” (Notes of testimony, 1/6/14 at 219.)

      Unlike the defendant in Williams, who did not attend his wife’s funeral

because her family suspected that he was responsible for her death, nothing

in the record in the instant case indicates that the victim’s family suspected

appellant in her death and that he was not welcome to attend her funeral.

Therefore, the probative value concerning appellant’s failure to attend the

victim’s funeral is not outweighed by unfair prejudice, and the trial court did

not abuse its discretion in admitting such testimony.

      Judgment of sentence affirmed. Motion to remand is denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2015




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