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Commonwealth v. Perrin

Superior Court of Pennsylvania

January 12, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DONTEZ PERRIN, Appellant

Argued August 6, 2012

Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, No. CP-51-CR-0003284-2008. Before GORDON, J.

Raymond D. Roberts, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: SHOGAN, WECHT, and STRASSBURGER,[*] JJ.

OPINION

STRASSBURGER, J.:

This matter comes before this Court on remand from the Pennsylvania Supreme Court " for reconsideration in light of Commonwealth v. Castro," 93 A.3d 818 (Pa. 2014). After so doing, we grant the request of Dontez Perrin (Appellant) to remand for a hearing based upon after-discovered evidence, and remand the case for further proceedings consistent with this opinion.

The procedural history of this case is as follows. Appellant appealed 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.[1] Appellant asked this Court to remand

Page 51

the case for a hearing based upon after-discovered evidence. After reviewing the relevant law, including this Court's decisions in Commonwealth v. Rivera, 2007 PA Super 361, 939 A.2d 355 (Pa. Super. 2007), and Commonwealth v. Castro, 2012 PA Super 214, 55 A.3d 1242 (Pa. Super. 2012) ( en banc ), we granted Appellant's request and remanded the case for further proceedings. Commonwealth v. Perrin, 2013 PA Super 1, 59 A.3d 663 (Pa. Super. 2013). The Commonwealth filed a petition for allowance of appeal with our Supreme Court. On June 16, 2014, that Court reversed this Court's Castro decision. By order of October 2, 2014, our Supreme Court granted the Commonwealth's petition for allowance of appeal in the instant case, vacated this Court's order, and remanded the case to us for reconsideration in light of its Castro opinion.

We discussed the facts of the instant case in detail in our prior opinion, see Perrin, 59 A.3d at 664-65, and need not reiterate them herein. Suffice it to say that Appellant's convictions were based primarily upon the testimony of Lynwood Perry, who informed the jury that Appellant had joined him and Amir Jackson in committing the robbery of the victim, Rodney Thompson.[2] 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.

On June 6, 2011, well after Appellant's trial and sentencing but while his direct appeal was pending, 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.

This document formed the basis of Appellant's petition to remand the case for a new trial or to pursue an after-discovered evidence petition with the trial court. In granting Appellant's petition and remanding the case for a hearing, we offered the following discussion.

" 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 ...

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