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Home My WebLink AboutCP-21-CR-0001660-2014 COMMONWEALTH v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT RICHARD ANTHONY SCARLETT CP-21-CR-1660-2014 IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925(a) PLACEY C.P.J., 19 AUGUST 2020 PROCEDURAL HISTORY On March 11, 2015, following a nonjury trial, Defendant was found guilty of Rape of a Child, 18 Pa.C.S. § 3121(c); Involuntary Deviate Sexual Intercourse with a child (IDSI), 18 Pa.C.S. § 3123(b); Unlawful Contact with a Minor, 18 Pa.C.S. § 6318(a)(l); Indecent Assault with a Person Less than 13 years of Age, 18 Pa.C.S. § 3126(a)(7); Simple Assault, 18 Pa.C.S. § 2701(a)(l); two counts of Endangering Welfare of Children, 18 Pa.C.S. § 4304(a)(l); and three counts of Corruption of Minors, 18 Pa.C.S. § 6301(a)(l)(i)-(ii). Defendant was found not guilty of the remainder of the charges at this thirteen (13) count Information. CP-21-CR-1660-2014 On July 21, 2015, Defendant was sentenced to an aggregate term of incarceration of 178 months to 360 months to be followed by 540 months supervised probation and 252 months of unsupervised probation. Post- Sentence Motions were filed on July 31, 2015, requesting a new trial, modification of the sentence, and reconsideration of the Sexually Violent Predator finding. Argument was held on December 22, 2015, and Post- Sentence Motions were denied on June 30, 2016. Defendant appealed, and on June 13, 2017, the Superior Court affirmed his conviction and sentence; thereafter, on January 3, 2018, the Supreme Court of Pennsylvania denied Defendant’s Petition for Allowance of Appeal. On February 12, 2018, pro se Defendant filed Petition for Transcripts and Discovery, and the request was granted. Defendant then filed for relief under the Post Conviction Relief Act on November 5, 2018. PCRA Counsel was appointed on November 19, 2019, the Commonwealth was directed to file and Answer to Defendant’s Motion, and a hearing was set. Defendant was granted two continuances on April 22, 2019, and June 18, 2019, respectively. Testimony was heard on August 6, 2019, and the parties were granted the opportunity to provide additional written briefs. On October 25, 2 CP-21-CR-1660-2014 2019, Defendant filed Hearing Request to provide testimony from additional witnesses. Defendant’s request was granted, additional testimony was heard on December 17, 2019, and the parties were again granted additional opportunity to file written briefs. On March 16, 2020, Defendant filed Request for Additional Time to File Brief, the request was granted, and Defendant was given an additional thirty days to file his brief; however, no additional brief was filed. Defendant’s Motion for Post Conviction Relief was denied on May 19, 2020, and Notice of Appeal was filed on June 19, 2020. On appeal, Defendant claims “the Trial Court erred in failing to grant a new trial when \[Defendant\] presented two witnesses who provided credible recantation evidence and testimony including that of the alleged primary victim.” Concise Statement of Errors Complained of on Appeal, filed July 9, 2020. STATEMENT OF FACTS The facts of the case are well documented in this jurist’s June 30, 2016 Opinion and the Superior Court’s non-precedential decision of June 13, 2017; these facts are incorporated by reference as if fully set forth. At the August 6, 2019 Hearing, victim J.M.P. partially recanted his trial testimony; however, the recantation testimony was in part self- 3 CP-21-CR-1660-2014 contradictory. Specifically, J.M.P. indicated that his stepmother, Jennifer Pannebaker, physically abused J.M.P. and motivated him to provide false testimony during Defendant’s trial. Furthermore, J.M.P. testified that since leaving Pannebaker’s home, he had renewed contact with Defendant’s daughters, Bianca and Angelica, whom J.M.P. considers to be his stepsisters. He testified that he communicates with Bianca through Facebook Messenger, and “told her that I apologized for everything that happened and I felt bad and I was hoping she wouldn’t hate me\[.\]” Notes of Testimony, Aug. 6, 2019, at 10 (henceforth N.T., date, at __). J.M.P. further testified that he had not spoken about the case with his brothers, who are co-victims, and specifically remembered that during the trial victims R.A.S. and J.M.P. had been sequestered and not heard each other testify. Id. at 20. Maternal grandmother, now adoptive mother, also testified to corroborate J.M.P. told her he previously testified falsely. On December 17, 2019, Jennifer Pannebaker convincingly testified that she did not tell J.M.P. what to testify to in Court nor did she ever physically abuse him. N.T., Dec. 17, 2019, at 11-12. She further explained she has no relationship with Defendant and therefore no reason to make up or prompt J.M.P. to make false allegations of abuse. Id., at 16. Finally, she testified that J.M.P. has many emotional problems, was in therapy, and 4 CP-21-CR-1660-2014 may be seeking assurance or a connection with his family by recanting. Id., at 17-18. DISCUSSION Statement of Law - It is well-settled that “\[r\]ecanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. There is no less reliable form of proof, especially when it involves an admission of perjury.” Commonwealth v. Loner, 836 A.2d 125, 135 (Pa. Super. 2003) (citing Commonwealth v. Mosteller, 284 A.2d 786, 788 (Pa. 1971)). The Pennsylvania Supreme Court has established that when it comes to recantation testimony, “there is no less reliable form of proof, especially when it involves an admission of perjury.” Commonwealth v. Coleman, 264 A.2d 649, 651 (Pa. 1970). “Credibility is the key when a new trial is sought on the basis of recanted testimony.” Commonwealth v. Fernandez, 332 A.2d 819, 821 (Pa. Super. 1974). Therefore, the trier of fact must assess the credibility and significance of the recantation in light of the evidence as a whole. Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa. 2004). Application of law to the facts - Defendant’s appeal for a new trial based on recanted testimony of one victim should be denied because the recantation testimony is not credible. J.M.P. testified that he had perjured 5 CP-21-CR-1660-2014 himself during Defendant’s trial. He stated that at the time of his original testimony, when he was age 12, he did not understand the importance of telling the truth and that he feared his stepmother and father more than he feared the courts. However, J.M.P., now age 17, only partially recants the claims he made against Defendant. J.M.P. new claim is that there was no sexual abuse, but he adamantly maintains he told the truth regarding physical abuse. Aside from wanting to cherry-pick which previous testimony was truthful and which was not, J.M.P.’s limited retraction is further undermined by the fact that the now-recanted trial testimony was corroborated by R.A.S. and other victims who did not hear J.M.P. testify, and who had no detectable motive to testify falsely. This court cannot discern an apparent motive for J.M.P. to testify falsely at trial, but can discern that there is now a clear motive to testify falsely at the recantation hearing in light of J.M.P.’s and Jennifer Pannebaker’s testimony that he is working to reestablish a relationship with his stepsisters—Defendant’s daughters. The recantation testimony is significant to J.M.P. because it allows him to the opportunity to build a familial relationship; however, it is less significant overall because in light of the all the evidence presented at trial the underlying claims against Defendant have been corroborated by multiple witnesses and multiple 6 CP-21-CR-1660-2014 victims. This new testimony is wholly unsatisfactory; therefore, in assessing the credibility and significance of the recantation in light of the evidence as a whole, this court is compelled to reject J.M.P.’s second version of the crime. For the reasons stated supra, J.M.P.’s recantation testimony is determined to be unsatisfactory and insufficient to warrant a new trial. Accordingly, Defendant’s instant appeal should be denied. By the Court, ________________________ Thomas A. Placey C.P.J. Distribution: Courtney Hair LaRue, Esq. Allen C. Welch, Esq. Court Administration 7