HomeMy WebLinkAboutCP-21-CR-1403-2006
COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGES: (1) UNLAWFUL DELIVERY OR
: MANUFACTURE OR POSSESSION
SHAREF A. FLOUNOY : WITH INTENT TO DELIVER
OTN: K392097-6 : SCHEDULE I CONTROLED
: SUBSTANCE
: (2) CRIMINAL CONSPIRACY
: CP-21-CR-1403-2006
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., July 18, 2007.
Defendant, following a trial by jury, was found guilty of unlawful delivery of a
Schedule I controlled substance (marijuana), an ungraded felony carrying penalties in the
form of a possible prison sentence of 10 years and a possible fine of $30,000, and of
criminal conspiracy to commit unlawful delivery of a Schedule I controlled substance, an
ungraded felony carrying penalties in the form of a possible prison sentence of 5 years
1
and a possible fine of $15,000. Defendant received a sentence of imprisonment of not
2
less than six months nor more than 23 months in the Cumberland County Prison.
After sentencing, Defendant filed post-sentence motions, requesting: a) a new trial
on the ground of after-discovered evidence; b) entry of a judgment of acquittal or, in the
alternative, award of a new trial on the ground that the evidence was insufficient to
sustain the verdict or that the verdict was against the weight of the evidence; and c) entry
of a judgment of acquittal or, in the alternative, award of a new trial, on the ground that
the court erred in permitting First Assistant District Attorney Jamie M. Keating, Esq., to
3
testify at the trial.
1
Order of Court, September 29, 2006.
2
Order of Court, November 21, 2006. Defendant has since been paroled on the sentence. Order of Court,
December, 2006.
3
Defendant’s Post-Sentence Motions, filed November 29, 2006.
4
Following a hearing on these post-sentence motions, the motions were denied.
No timely appeal was filed from the judgment of sentence. However, because Defendant
had not been informed of the denial of his post-sentence motions, he was subsequently
5
permitted to file a direct appeal nunc pro tunc from the judgment of sentence. He has
6
now done so.
The bases for the appeal have been expressed in Defendant’s statement of matters
complained of on appeal as follows:
1.The Court erred in denying the Appellant’s request for a new trial, and
request for the exclusion of testimony of the co-defendant, Trish
Hiester, on grounds of after-discovered evidence which is contained in
a letter, the essential facts of which can be summarized as follows: (a)
Following Defendant’s trial, on October 12, 2006, at the time of
Hiester’s sentencing, the Commonwealth amended the information to
include a misdemeanor count of Possession of a Schedule I Controlled
Substance – Marijuana (hereinafter “Possession”); (b) Hiester withdrew
her plea to Conspiracy, an ungraded felony, and entered a plea to
Possession, an ungraded misdemeanor; and (c) the Commonwealth
recommended a sentence of probation and Hiester was sentenced
accordingly by the Court.
2.The Court erred in denying the appellant’s Motion for Judgment of
Acquittal or, in the alternative, request for a new trial on grounds that
the verdict was against the weight of the evidence.
3.The Court erred in denying the appellant’s Motion for Judgment of
Acquittal or, in the alternative, request for a new trial on grounds that
First District Attorney Jamie Keating was improperly permitted to
testify.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
4
Order of Court, February 20, 2007.
5
Order of Court, April 30, 2007.
6
Defendant has mistakenly characterized the appeal as being from the order denying his post-sentence
motions rather than from the judgment of sentence. See Commonwealth v. Lewis, 2006 PA Super. 314, ¶1
n.1, 911 A.2d 558, 561 n.1.
2
STATEMENT OF FACTS
The present case arises out of a controlled buy of marijuana arranged by Detective
Jeffrey Kurtz of the Carlisle Borough Police Department, who utilized a confidential
informant, an undercover Pennsylvania state trooper, and a Carlisle Borough police
officer in the process. The initial phase of the operation involved a monitored call from
the confidential informant to a woman named Trish Ann Hiester. At trial, five witnesses
testified on behalf of the Commonwealth in support of the prosecution, and two
witnesses, including Defendant, testified for the defense.
The testimony of the Commonwealth’s first witness, Ms. Hiester (Hiester), may be
summarized as follows:
On December 14, 2005, Hiester received a phone call (apparently from the
7
confidential informant) asking her to arrange a drug buy of one-half ounce of marijuana.
After indicating to the caller that she could facilitate such a transaction, Hiester
telephoned one Christopher Johnson (Johnson), and asked him if he could arrange the
89
deal. Johnson responded to Hiester that he could in fact arrange such a transaction.
Pennsylvania State Trooper James O’Shea (O’Shea) (acting undercover as a drug
purchaser) and the confidential informant arrived at Hiester’s residence to pick her up in
10
order to complete the transaction. After picking up Hiester, O’Shea and the informant
11
then went to a supermarket and Hiester dropped off a prescription. Following this stop,
12
they drove to a trailer park and picked up Johnson. All four individuals then proceeded
13
to a gas station, where the transaction was to take place. While at the gas station,
7
N.T. 22, Trial, September 27-29, 2006 (hereinafter N.T. ___).
8
N.T. 22.
9
N.T. 22.
10
N.T. 22; see N.T. 63, 85.
11
N.T. 33; see N.T. 71, 86.
12
N.T. 22; see N.T. 63, 87.
13
N.T. 23; see N.T. 63, 87.
3
Johnson went inside, returned, and received $50.00 from Hiester, who had previously
14
been given $110.00 by O’Shea. Johnson took the money, returned to the gas station
15
and placed a telephone call. After completing the telephone call, Johnson returned to
16
the vehicle where O’Shea, Hiester and the confidential informant were waiting.
Approximately fifteen to twenty minutes later, an individual that Hiester knew as
17
“Sherm” arrived at the gas station. Hiester identified Defendant as “Sherm,” a person
18
whom she had known for two years. When Defendant pulled into the gas station,
19
Johnson exited O’Shea’s vehicle and approached Defendant’s vehicle. Johnson then
gave Defendant the $50.00 that Hiester had given him, in exchange for a bag of
20
marijuana, and, thereafter, returned to O’Shea’s vehicle. Upon returning to O’Shea’s
21
vehicle, Johnson gave the marijuana to O’Shea. At that time, Defendant and O’Shea
pulled away from the gas station in their respective vehicles, and O’Shea thereafter
22
dropped Hiester and Johnson at a trailer park in which they resided. The undercover
23
informant and O’Shea then departed.
Hiester was not working with law enforcement at the time of the drug
2425
transaction, did not know that O’Shea was a law enforcement officer, and did not
14
N.T. 23; see N.T. 64.
15
N.T. 23.
16
N.T. 23.
17
N.T. 24. Hiester testified that she had known Defendant for two years—both by sight and name—prior
to the date in question. N.T. 30-31. Hiester also testified that she recognized the car that the Defendant
was driving as belonging to him. N.T. 36.
18
N.T. 24.
19
N.T. 24.
20
N.T. 24.
21
N.T. 24.
22
N.T. 25. After being dropped off at the trailer park, Hiester and Johnson then smoked at least one
“blunt.” See N.T. 25 (testifying on direct examination that she and Johnson smoked one blunt); see also
N.T. 33 (testifying on cross-examination that she smoked two blunts with Johnson). After smoking the
marijuana, Johnson and Hiester went about their respective businesses. See N.T. 25, 33.
23
N.T. 25.
24
N.T. 26-27.
4
26
receive consideration from the Commonwealth in exchange for her testimony. As a
result of Hiester’s actions on the night in question, she was arrested and charged with
27
criminal conspiracy, as well as unlawful delivery. Prior to Defendant’s trial, she pled
guilty to the conspiracy charge, the delivery charge was withdrawn, and the
28
Commonwealth agreed to recommend a sentence of probation for her.
The Commonwealth’s second witness was Cumberland County Assistant District
Attorney Jaime M. Keating. His testimony as to the plea bargain he had entered into with
Hiester was proffered by the Commonwealth in response to the impeachment of Hiester
29
on cross-examination by defense counsel, whose questions were designed to suggest
that the Commonwealth had induced Hiester to testify falsely in return for unusually
lenient treatment in her own case. This testimony was objected to by Defendant’s
3031
counsel as “irrelevant,” but the objection was overruled.
The testimony of Mr. Keating (Keating) may be summarized as follows:
Keating was the Cumberland County assistant district attorney who represented
32
the Commonwealth in connection with Hiester’s entry of a guilty plea to conspiracy.
Hiester had been charged with two felonies—unlawful delivery and criminal conspiracy;
however, the Commonwealth offered her a plea arrangement whereby she would plead
guilty to conspiracy, and the delivery charge would be dropped and probation would be
33
recommended. As a result of the plea bargain, Hiester would receive one felony
conviction, as opposed to two felony convictions that she would have received if she had
25
N.T. 27.
26
N.T. 29-30; see also id. at 39-46 (Hiester did testify that the Commonwealth agreed to recommend
probation for her guilty plea to a charge of criminal conspiracy). Id. at 43.
27
N.T. 41.
28
N.T. 41-44.
29
N.T. 47.
30
N.T. 47.
31
N.T. 47-48.
32
N.T. 48-49.
33
N.T. 50-51.
5
34
been tried and convicted on both. The plea was not in exchange for Hiester’s promise
35
to testify against Defendant.
Mr. Keating’s testimony at Defendant’s trial included the following:
Q Tell me about Ms. Hiester’s case. Did she enter a plea of
guilty.
A Yes. On August 30th, 2006, she pleaded guilty, and she is
set to be sentenced on October 10th, 2006.
Q Did you make any recommendations to the Court at the
time of her plea as to what sort of punishment she should receive for
what she pled guilty to?
A At the time of the plea I indicated to the Court that we
would be recommending a sentence of probation. It’s a standard
sentence for this offense given her prior history record and this
offense.
Q What’s her prior record score?
A I believe zero.
Q What’s that mean?
A It means that other than I believe—I don’t know if she
even has a conviction, a prior conviction. Let me just take a look. It
looks as though she had a Retail Theft in 1997, which would have
been a summary offense, which is along the lines of a traffic ticket,
Disorderly Conduct, that sort of thing, the first time someone does a
Retail Theft, which means that there isn’t a significant criminal
history for them to get certain points for their prior record score. The
higher the prior record score, the higher the penalty for whatever they
get convicted. So in this particular case, since she had a prior record
score of zero, probation was the standard sentence for this.
Q What, if any, kind of break did you give her by making
that recommendation to the Court?
A Well, really none. I mean she accepted—in exchange for
her accepting responsibility and pleading guilty, we agreed to, you
know, recommend probation as opposed to a more harsh sentence in
this particular case, which is the standard plea that we do for
everybody with a prior record score.
34
N.T. 54.
35
N.T. 57.
6
Q Did she plead guilty to the actual delivery or did she plead
guilty to something else?
A She pleaded guilty to Criminal Conspiracy of the delivery.
Q What’s the difference between the conspiracy and the
delivery?
A The conspiracy is that she agreed with another person, in
this case Mr. Flunky and Mr. Johnson, for—you know, to deliver
these drugs to the police.
Q What kind of a break, if any, was that for Trish Hoister?
Allowing her to plead to Count 2 in satisfaction of both counts?
A None really because of the fact that they’re both the same
seriousness of charge. Conspiracy and the actual delivery is the same
seriousness. The reason we took the plea to the conspiracy was that
we wanted to lock her in so that she couldn’t come in and say, no, I
was the person who dealt the drugs. So when she pleaded guilty, if
my recollection serves me correctly, she actually pleaded guilty to
conspiring with this Defendant and with the other defendant,
36
Christopher Johnson.
* * * *
Q So are you telling me she didn’t get any sort of a deal from
the government in this case?
37
A . . . Yes, she did not get a deal from the government, no.
Pennsylvania State Trooper James O’Shea was the Commonwealth’s third
witness. His testimony may be summarized as follows:
38
O’Shea was an undercover officer working in a drug unit on the date in question.
On December 14, 2005, O’Shea, as well as Carlisle Borough Police Officer Eric Dale and
Carlisle Borough Police Detective Jeffrey Kurtz—members of the Cumberland County
Drug Task Force—, decided to attempt to make an undercover controlled purchase of a
39
controlled substance in the Carlisle area. By the time O’Shea became involved in the
36
N.T. 49-51.
37
N.T. 52.
38
N.T. 61.
39
N.T. 61-62.
7
operation that evening, Detective Kurtz had already used a confidential informant to
40
arrange a potential purchase involving Hiester.
O’Shea, acting undercover, and the confidential informant were to drive to
41
Hiester’s residence and pick her up. After retrieving Hiester, they then proceeded to
42
another residence and picked up Christopher Johnson. Johnson then instructed O’Shea
43
to drive to a Getty-Mart, where the deal was to transpire. Once O’Shea, the confidential
informant, Hiester and Johnson arrived at the Getty-Mart, Johnson exited the vehicle,
44
entered the store, made a telephone call, and returned to O’Shea’s vehicle.
Approximately forty-five minutes later, Defendant arrived at the Getty-Mart,
45
driving a Chrysler sedan. O’Shea identified photographs of the Defendant’s automobile
as being pictures of the vehicle that Defendant drove to the Getty-Mart on the night in
46
question.
O’Shea was not able to see the driver of the vehicle, but noted that there was a
47
single occupant in the vehicle. Johnson thereafter exited O’Shea’s vehicle, approached
Defendant’s vehicle, and exchanged money for a plastic bag containing a green leafy
48
substance. Johnson then returned to O’Shea’s vehicle and gave the bag containing the
49
green leafy substance to Hiester. Hiester gave the bag to the confidential informant,
50
who, ultimately, gave it to O’Shea, who thereafter gave it to Detective Kurtz. The
40
N.T. 62-63.
41
N.T. 63.
42
N.T. 63.
43
N.T. 63. On the way to the Getty-Mart, O’Shea stopped at a Weis store to allow Hiester to drop off a
prescription at the pharmacy located inside the Weis. See N.T. 70.
44
N.T. 64.
45
N.T. 64-65.
46
N.T. 66.
47
N.T. 66.
48
N.T. 66-67.
49
N.T. 67.
50
N.T. 67.
8
contents of the plastic bag were later identified through laboratory testing to be 10.25
51
grams of marijuana. After Johnson returned to O’Shea’s vehicle with the marijuana,
O’Shea drove back to the area where Hiester and Johnson resided, and dropped them
5253
off. O’Shea did not personally see the actual exchange take place.
Carlisle Borough Police Officer Eric Dale (Dale) was the Commonwealth’s fourth
54
witness. His testimony may be summarized as follows:
Dale was acting in a surveillance capacity during the time that O’Shea picked up
55
Hiester in O’Shea’s vehicle. He then drove to a second location to wait for the
56
transaction to occur. While waiting, Dale observed Defendant, whom he identified,
57
drive past his location. Dale radioed to Detective Kurtz that Defendant was on his
5859
way. Dale then followed Defendant’s vehicle for some time, but temporarily lost it.
60
Dale then received notice from Detective Kurtz that the deal had been consummated.
Shortly thereafter, Defendant’s vehicle again came into Dale’s view, and Dale followed it
61
for a short period of time, before Defendant turned off.
The Commonwealth’s fifth witness was Jeffrey Kurtz of the Carlisle Borough
62
Police Department. His testimony may be summarized as follows:
51
N.T. 68; see also Commonwealth Exhibit 1 (laboratory analysis).
52
N.T. 67
53
N.T. 73.
54
N.T. 74-75.
55
See N.T. 75.
56
See N.T. 75.
57
N.T. 75-76. Officer Dale testified that he knew the Defendant both by name and face at the time of the
drug transaction. N.T. 77. Dale also recognized the Defendant’s vehicle as the vehicle that Defendant
always operated. Id.
58
N.T. 76, 82.
59
N.T. 76.
60
N.T. 76.
61
N.T. 76-77.
62
N.T. 83.
9
After being “consentualized,” a confidential informant made several recorded
telephone calls to Hiester, the subject of which involved the purchase of approximately
63
$100.00 worth of marijuana. Hiester told the confidential informant that the informant
and anyone else would be welcome to come to Hiester’s home, and that she would
64
attempt to arrange the transaction.
Undercover Trooper O’Shea then proceeded to Hiester’s home with the
65
confidential informant. Kurtz was following O’Shea’s vehicle in a surveillance
66
capacity. Kurtz observed O’Shea, after O’Shea had picked up Hiester, drive to another
67
location and pick up an individual named Christopher Johnson. Eventually, O’Shea’s
vehicle arrived at the Getty-Mart location, and Kurtz stationed his vehicle across the
68
street to observe.
After waiting approximately forty-five minutes, Kurtz was contacted by Dale
through a Nextel service, and was informed that a suspect vehicle was heading in their
69
direction. At approximately that time, Kurtz observed Defendant’s vehicle, with which
70
he was familiar, traveling toward the location at which Kurtz and O’Shea were located.
Kurtz then witnessed Defendant pull into the Getty-Mart and remain for a short period of
71
time. During that time, Kurtz observed Johnson exit O’Shea’s vehicle, go to the
63
N.T. 84-85.
64
N.T. 85.
65
N.T. 85.
66
See N.T. 86.
67
N.T. 86-87. Christopher Johnson was subsequently arrested and charged for his participation in the
drug deal, but then absconded. Id.
68
N.T. 88
69
See N.T. 88.
70
See N.T. 88. Kurtz was familiar with the Defendant by name, face and vehicle, at the time of the
incident. Id. Kurtz did not, however, make an initial positive visual identification of the Defendant at the
Getty-Mart. See id. at 89.
71
N.T. 89.
10
Defendant’s vehicle, and then return to O’Shea’s vehicle within approximately two
72
minutes.
Defendant’s vehicle then pulled out of the Getty-Mart, and Kurtz followed it, at
one point making a positive visual identification of Defendant as the operator of the
73
vehicle. Later, Kurtz performed a vehicle registration check using the license plate
74
number on the suspect vehicle, and found that it was registered to Defendant.
Following Kurtz’s testimony, the Commonwealth rested its case.
75
Defendant’s first witness was Karl E. Rominger, Esq. Mr. Rominger’s
testimony may be summarized as follows:
In Mr. Rominger’s experience as a criminal defense attorney, the maximum
76
penalty for delivery of one-half ounce of marijuana was approximately five years.
Likewise, the maximum penalty for criminal conspiracy to deliver the same was
77
approximately five years. If a person were convicted of both offenses, he could face ten
78
years of imprisonment, which could be run either concurrently or consecutively.
After Mr. Rominger’s testimony, Defendant took the stand in his own defense.
Defendant’s testimony may be summarized as follows:
Defendant asserted that, because of the lapse of five months between the
occurrence of the alleged incident and his arrest, he had no memory of what had occurred
79
on that night. Defendant was not the one driving the vehicle said to have been at the
Getty-Mart, but he had no memory of exactly what he had been doing on the night in
80
question. Defendant did not know Johnson, and did not sell drugs to him on the night
72
N.T. 98.
73
N.T. 89-90. Kurtz was a passenger in the vehicle he was traveling in. Id. at 101.
74
N.T. 90-91.
75
N.T. 112.
76
N.T. 118.
77
N.T. 118-19.
78
N.T. 122-23.
79
N.T. 130-31.
80
N.T. 131-32.
11
81
in question. Defendant knew Hiester by sight; however, at the time of the incident at
82
issue he did not know her name and had never spoken to her. Hiester was perhaps
83
testifying against him in order to deflect the blame from someone else.
After deliberating, the jury returned verdicts of guilty on both charges on
84
September 29, 2006. Defendant was sentenced, as described previously, on November
85
21, 2006.
On November 29, 2007, Defendant filed post-sentence motions. These consisted
of a “Motion for New Trial on Grounds of After-Discovered Evidence,” a “Motion for
Judgment of Acquittal or, in Alternative, Grant a New Trial on Grounds That Verdict
Was against the Weight of the Evidence,” and a “Motion for Judgment of Acquittal or, in
Alternative, Grant a New Trial on Grounds That First Assistant District Attorney Jaime
86
Keating Was Improperly Permitted To Testify.”
The after-discovered evidence was information contained in a letter from Mr.
Keating of the District Attorney’s Office to Defendant’s counsel following the guilty
verdicts against Defendant and relating to the sentence of Ms. Hiester, which occurred
after Defendant’s trial. Specifically, Defendant’s post-sentence motion summarized the
information contained in the letter as follows:
I. Following Defendant’s trial, on October 12, 2006, at the time of
Hiester’s sentencing, the Commonwealth amended the information to
include a misdemeanor count of unlawful possession of marijuana.
ii. Hiester withdrew her plea to Criminal Conspiracy to Commit
Delivery of Marijuana, an ungraded felony, and entered a plea to
possession of marijuana, a misdemeanor.
81
N.T. 132.
82
N.T. 132, 136.
83
N.T. 136.
84
N.T. 163; Order of Court, September 29, 2006.
85
Order of Court, November 21, 2006. Defendant was paroled on the sentence on December 8, 2006.
Order of Court, December 7, 2006.
86
Defendant’s Post-Sentence Motions, filed November 29, 2006.
12
iii. The Commonwealth recommended probation and Hiester was
87
sentenced accordingly.
Defendant challenged the weight of the evidence in terms of a purported bias on
the part of Ms. Hiester and the unreliability of identifications by Ms. Hiester, Detective
88
Kurtz and Officer Dale. A hearing was held on Defendant’s post-sentence motions on
January 25, 2007.
In a brief in support of his post-sentence motions, Defendant argued that the
testimony of Mr. Keating was objectionable because it bolstered the credibility of Ms.
89
Hiester. As previously noted, however, the reason expressed for Defendant’s objection
at the time was relevancy.
At the hearing on the post-sentence motions, Mr. Keating testified that following
Defendant’s trial Detective Kurtz approached Mr. Keating and advised that Ms. Hiester
had testified for the Commonwealth at Defendant’s trial, notwithstanding that she had not
agreed to be a cooperating witness, and that if she received a felony conviction she would
90
lose her publicly-funded housing. Based on this information, Mr. Keating then made a
decision to recommend a change in the plea arrangement with Ms. Hiester, a change that
was disclosed to Defendant’s counsel in Mr. Keating’s letter and that involved a non-
91
felony disposition. The court found the testimony of Mr. Keating in this regard, which
was not contradicted, entirely credible.
92
Following the hearing, the court denied Defendant’s post-sentence motions. A
direct appeal to the Pennsylvania Superior Court was filed by Defendant on May 3,
93
2007.
87
Defendant’s Post-Sentence Motions, filed November 29, 2006.
88
Defendant’s Post-Sentence Motions, filed November 28, 2006.
89
Defendant’s Brief in Support of Defendant’s Post-Sentence Motions at 9-11 (hereinafter Brief in
Support at ____.
90
N.T. 25-26, Hearing, January 25, 2007.
91
N.T. 28-29, Hearing, January 25, 2007.
92
Order of Court, February 20, 2007.
93
Defendant’s Notice of Appeal, filed May 3, 2007.
13
DISCUSSION
After-Discovered Evidence. “The tests for granting a new trial in a criminal case
on the ground of after-discovered evidence were set forth succinctly by the Superior
Court in the case of Commonwealth v. Hanes, 162 Pa. Super. 206, 57 A.2d 165 (1948).
At page 209 . . . the court stated: ‘A new trial in a criminal case will be awarded on the
ground of after-discovered evidence where the evidence in question (1) has been
discovered after the trial and could not have been obtained at or 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 for impeaching credibility of a witness; and (4) is
of such nature and character that a different verdict will likely result if a new trial is
granted.’” Commonwealth v. Coleman, 438 Pa. 373, 376-77, 264 A.2d 649, 651 (1970).
The alleged after-discovered evidence at issue in this case is a letter received by
defense counsel on October 12, 2006, which contained information regarding Hiester’s
sentencing on October 12, 2006. The letter informed Defendant’s counsel that, at
Hiester’s sentencing hearing, the Commonwealth amended the criminal information to
include a lesser possession charge, and that Hiester subsequently withdrew her previous
plea and pled to this lesser charge, with the Commonwealth recommending probation and
94
the court imposing the same.
The first prong of the test is satisfied because the evidence clearly could not have
been obtained at or prior to trial, since it was developed following Defendant’s trial.
With respect to the second prong, Defendant argues that the evidence is not
cumulative because Hiester was the only witness to identify Defendant in the gas station
95
parking lot, which directly contradicted Defendant’s testimony that he was not there.
As noted, “the test for when a defendant is entitled to a new trial on the basis of after-
discovered evidence specifically requires that the alleged after-discovered evidence not
be merely cumulative or corroborative.” Commonwealth v. Mason, 559 Pa. 500, 518, 741
94
Defendant’s Concise Statement of Matters Complained of on Appeal, filed May 21, 2007, para. 1
(hereinafter Concise Statement).
95
Brief in Support at 3-4.
14
A.2d 708, 718 (1999) (criticized on other grounds by Commonwealth v. Freeman, 573
Pa. 532, 557, 827 A.2d 385, 400 (2003)). At issue in Mason was whether pictures of a
murder victim and her alleged killer which surfaced after the trial warranted the award of
a new trial. The Court held that they did not because the pictures were cumulative and
corroborative of evidence presented at trial.
In the present case, the evidence that subsequent to Defendant’s trial the
Commonwealth had decided to recommend a reduction in the grade and form of Ms.
Hiester’s offense, in part for the purpose of facilitating her retention of public housing, at
best reflected a generally favorable attitude of the Commonwealth toward Ms. Hiester
that had already been brought to the jury’s attention in terms of the Commonwealth’s
recommendation of probation in her case. In this sense, the after-discovered evidence
was merely cumulative and corroborative of a position already in evidence.
With respect to the third prong, the only arguable relevancy of the after-discovered
evidence would have been its tendency to impeach the credibility of Ms. Hiester. Finally,
with respect to the fourth prong, the information from Mr. Keating that the
Commonwealth, after Ms. Hiester had testified in Defendant’s trial, decided to propose a
reduction in the grade of her offense did not directly introduce a new motivating factor
for her testimony. At best, the evidence was dependent for its effect upon a conjecture
that Mr. Keating was himself not telling the truth as to the timing of the decision. In this
sense, the evidence was of such marginal significance that it could hardly be said that its
introduction would have likely resulted in a different verdict.
Weight of the Evidence. “[I]t is not only a trial court's inherent fundamental and
salutary power, but its duty to grant a new trial when it believes the verdict was against
the weight of the evidence and resulted in a miscarriage of justice. Although a new trial
should not be granted because of a mere conflict in testimony or because the trial judge
on the same facts would have arrived at a different conclusion, a new trial should be
awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of
justice and the award of a new trial is imperative so that right may be given another
15
opportunity to prevail.” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d
669, 672 (1985) (citations omitted).
Based upon this standard, the facts of the present case show the verdict arrived at
was not “so contrary to the evidence as to shock one’s sense of justice.” There were three
witnesses who testified to seeing Defendant in the vehicle which was involved in the drug
transaction, Hiester, Dale and Kurtz, and the vehicle was identified by registration record
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as being Defendant’s. Only Defendant testified to the contrary as to his involvement.
Under these circumstances, the suggestion that the relative weight of the evidence was
overwhelmingly on Defendant’s side was not persuasive.
Sufficiency of the Evidence. On a challenge to the sufficiency of the evidence in a
criminal case, the evidence is to be viewed “in [a] light most favorable to the
Commonwealth” and “all reasonable inferences in the Commonwealth’s favor” are to be
entertained. Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996)
(quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288
(1984)).
As discussed supra, the Commonwealth presented three eyewitnesses who
identified Defendant as approaching the location of the drug sale, at the location and
making the sale, and/or leaving the drug sale. Through Penn DOT records, the vehicle
used in the offense was identified as that of Defendant. The Commonwealth’s
identifying witnesses were all previously familiar with the Defendant by face, name and
vehicle. The evidence amply supported the jury’s finding that Defendant was the
perpetrator.
Testimony of Mr. Keating. With respect to relevancy, which was the basis for the
objection made to Mr. Keating’s testimony by defense counsel at trial, it is well settled
that “relevant evidence” is “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
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Defendant’s testimony that he had not been present but did not remember where he had been at the time
can not be said to have outweighed the evidence to the contrary.
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probable than it would be without the evidence.” Pa. R.E. 401. As a general rule, “all
relevant evidence is admissible.” Pa. R.E. 402.
In the present case, the terms and effect of Hiester’s plea arrangement with the
Commonwealth were made an issue by the defense for purposes of impeachment of the
credibility of Hiester in her capacity as a witness against Defendant. Mr. Keating’s
testimony, tending to show that the plea arrangement was not unusually beneficial to Ms.
Hiester given the nature of the charges against her and her prior record, and indicating
that the arrangement did not involve an obligation on the part of Ms. Hiester to testify
against Defendant, tended to undermine the defense position in this regard and was thus
relevant. Accordingly, it was not excludable on relevancy grounds.
With respect to the “bolstering” aspect of Defendant’s present position as to Mr.
Keating’s testimony, it must initially be observed that a ground for an objection is waived
if not asserted at the time of the objection. Commonwealth v. Shank, 2005 PA Super.
317, ¶20, 883 A.2d 658, 668. Having objected only on the ground of relevancy to the
testimony, Defendant may not subsequently prevail on the issue of the admissibility of
the testimony on another ground.
On the merits of the “bolstering” argument, it may be noted that, in the context of
bolstering by a prosecutor, as a general rule, “(1) the prosecutor must assure the jury the
testimony of the government witness is credible, and (2) this assurance must be based on
either the prosecutor’s personal knowledge or other information not contained in the
record.” Commonwealth v. Williams, 586 Pa. 553, 582-83, 896 A.2d 523, 541 (2006). In
the present case, Mr. Keating did not personally vouch for the credibility of Ms. Hiester,
but simply presented the circumstances of her plea bargain, from which the jury could
form an opinion as to whether the arrangement provided a motive for her to testify
untruthfully at Defendant’s trial. His testimony, in short, did not fall within the category
of evidence normally associated with the bolstering of another witness’ credibility.
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For the foregoing reasons, it is believed that the judgment of sentence in this case,
from which Defendant has appealed, was properly entered.
BY THE COURT,
______________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Stacy B. Wolf, Esq.
Court-appointed Attorney for Defendant
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