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.
The opinion of the court was delivered by: Strassburger, J.
BEFORE: SHOGAN, WECHT, and STRASSBURGER,*fn1 JJ.
OPINION BY STRASSBURGER, J.
Dontez Perrin (Appellant) appeals 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 crime.*fn2 Appellant asks this Court to remand the case for a hearing based upon after- discovered evidence. Upon careful consideration of the evidence and the applicable case law, we vacate Appellant's judgment of sentence, grant Appellant's request, and remand the case for further proceedings consistent with this opinion.
At approximately 7:00 P.M. on November 14, 2007, Rodney Thompson delivered a pizza to apartment 1-A of a building in the Bartram Gardens housing development in Philadelphia. When the door to the apartment opened, Thompson was greeted by two armed men whose faces were mostly covered. Thompson recognized both men, later identified as Lynwood Perry and Amir Jackson, from seeing them in or around the pizza shop. A third man, whom Thompson had not seen before, came up behind Thompson and pushed him through the door, placing what felt like a gun against the back of Thompson's head. Perry and Jackson took the cash from Thompson's pockets; Jackson hit Thompson in the head with his gun; and then the third man helped Thompson to his feet and instructed him to leave.
Thompson reported the incident to the police and went to the hospital, where he received seven stitches in his head. The following day, Thompson gave a statement to the police and viewed photographs, from which he picked out Perry, Jackson, and Appellant as the perpetrators of the robbery. Appellant, who is 6'2" tall and weighs 260 pounds, was arrested the next day sporting a full beard.
Thompson attended a line-up on March 11, 2008. Prior to viewing individuals to attempt to pick out the perpetrators of the robbery, Thompson, who is 6' tall, described the third individual as being between 5'8" and 5'10" tall, weighing between 140 and 155 pounds, and having no facial hair. Thompson selected an individual other than Appellant from the lineup.
At trial, Thompson and Perry testified that Appellant was the third man involved in the robbery. Thompson was unclear about how much of the face of the man behind him he was able to see during the robbery and whether that individual had any facial hair, but maintained that Appellant was that man.
Perry acknowledged that he was testifying for the 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. Perry testified that he first met Jackson and Appellant one week before the robbery. Jackson called Perry on the day of the robbery and asked Perry if he wished to participate. Perry went to Bartram Village, they discussed the plan, Jackson called to order the pizza, and Jackson and Perry went to wait in vacant Apartment 1-A while Appellant went upstairs. Perry's remaining account of the robbery was substantially similar to Thompson's.*fn3
Appellant was found guilty of the aforementioned crimes on September 13, 2010, and on November 16, 2010, was sentenced as indicated above.
Counsel was appointed to represent Appellant on appeal, but notice of the appointment was not sent to counsel. Appellant's direct appeal rights were subsequently reinstated, and Appellant filed a timely notice of appeal on April 29, 2011.
On June 6, 2011, 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.
Based upon this document, Appellant filed with this Court a petition to remand the case for a new trial or to pursue an after-discovered evidence petition with the trial court. By order of February 8, 2012, Appellant's petition was denied without prejudice to raise the after-discovered evidence issue in his brief. Appellant has done so, presenting the following question for our consideration: "WHETHER APPELLANT IS ENTITLED TO AN EVIDENTIARY HEARING BASED ON AFTER DISCOVERED/NEWLY DISCOVERED EVIDENCE OF HIS INNOCENCE." Appellant's Brief at 10. "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 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, 986 A.2d 84, 109 (Pa. 2009) (quoting Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 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 ...