J-S48005-20
2021 PA Super 21
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAKIEM FELDER :
:
Appellant : No. 2994 EDA 2019
Appeal from the Judgment of Sentence Entered May 9, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0002227-2018.
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
OPINION BY KUNSELMAN, J.: FILED FEBRUARY 17, 2021
Hakiem Felder appeals from the judgment of sentence imposing three
to six years’ incarceration, following his non-jury conviction of three violations
of the Uniform Firearms Act.1 Felder and the Commonwealth believe after-
discovered evidence necessitates a new trial. However, because the trial court
acted within its discretion when it denied the new-trial request, we affirm.
The trial court related the following facts:
On December 30, 2017, at around 11:00 p.m.,
Philadelphia Police Officer Michael Schmidt and his partner,
Officer Marc Marchetti, were on patrol . . . Officer Schmidt
observed [Felder] look in the direction of the officers’ police
car and then make a motion as if he were removing a silvercovered object from his waistband. [Felder] then went
behind a car, at which time Officer Schmidt heard what
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1 18 Pa.C.S.A. § 6105 (possessing a firearm when prohibited), 18 Pa.C.S.A. §
6106 (carrying without a license), and 18 Pa.C.S.A. § 6108 (carrying a firearm
on the streets of Philadelphia).
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sounded like a metallic object hitting the ground. Whatever
the object was, it made a sound when it hit the pavement.
[Next,] Officer Marchetti stopped the patrol car, and
Officer Schmidt began a conversation with [Felder] about a
recent fight. While Officer Schmidt spoke to [Felder], Officer
Marchetti went to look for the object [Felder] appeared to
drop. He returned shortly thereafter and indicated that he
had recovered a handgun loaded with nine rounds. The
officers then placed [Felder] under arrest. Once inside the
patrol car, [Felder] volunteered that the officers could not
have heard the gun hit the ground, because there was snow
on the ground.
Trial Court Opinion, 5/18/2020, at 1-2.
At trial, both of the officers testified that they observed Felder remove
something from his waistband and both of them heard a metal object hit the
ground. See N.T., 2/27/19, at 9, 18-19, 20, 26, 31-32. Officer Marchetti also
heard Felder confess to dropping the gun. See id. at 30-31. “While we were
seated in the vehicle, [Felder] stated as a blurt – utterance – he said, ‘There’s
no way you could’ve heard that; it hit the sidewalk; there’s snow on there.”
Id.
The trial court found Felder guilty of three firearms offenses. Thereafter,
the Commonwealth realized it failed to disclose 2018 court records that could
have weakened Officer Schmidt’s credibility. The Commonwealth described
those records, from two unrelated cases, as follows:
in April 2018 and September 2018, judges in two separate
cases had found that both Officer Schmidt and [another
officer] had testified incredibly about what led them to stop
and search two individuals in unrelated incidents in March
2017. At the time of trial, those decisions were in the
Commonwealth’s possession, but the prosecuting district
attorney was unaware of them.
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In the first case, Officer Schmidt and his then-partner,
Officer Edward Wright, both testified that, while on patrol on
March 2, 2017, they were able to smell the strong scent of
fresh marijuana emanating from a vehicle. Officer Schmidt
testified that he was able to smell that odor through the
windows of their patrol car from approximately two houselengths away (or 30 feet). In an unpublished order, a judge
of the Court of Common Pleas determined that both officers
had given incredible testimony and that they “could not, and
did not, detect the odor of marijuana emanating from the”
vehicle. Order at 2-3, Commonwealth v. Dill, CP-51-CR-
0002316-2017 (C.P. Philadelphia May 9, 2018).
In the other case, Officer Schmidt and Officer Wright
testified that, while on patrol on March 11, 2017, they had
both “noticed a man crouch behind the passenger side of a
parked car after looking toward the officers as they drove
past.” The officers testified that, after they stopped to
investigate, they “could immediately smell the odor of fresh
marijuana coming from inside the vehicle.” In an
unpublished memorandum opinion, a U.S. District Judge
concluded that both officers had again testified incredibly.
The court wrote that “several factors led it to that
conclusion: the inconsistency and embellishment of the
officers’ testimony; a previous adverse credibility finding
against both officers in [Dill, supra]; and the unlikeliness
of the officers’ ability to smell the marijuana, given its
packaging, weight, and location in the car.” Mem. Op. at 2-
3, 12, United States v. Harrison, No. 17-228 (E.D. Pa.
Sept. 17, 2018).
Promptly after learning of the two decisions, the
assistant district attorney disclosed them to [Felder’s]
counsel by phone call and e-mail.
Commonwealth’s Brief at 4-7 (some punctuation and citations omitted).
Based on the 2018 court records, Felder moved for extraordinary relief
pursuant to Pennsylvania Rule of Criminal Procedure 704(B). Specifically, he
sought a new trial due to after-discovered evidence. The trial court denied
Felder’s motion and sentenced him as described above.
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This timely appeal followed.
Felder raises one issue on appeal. He asks this court:
Should the trial court have granted . . . extraordinary relief
in the interest of justice, when [he] and the Commonwealth
learned after trial, but prior to sentencing, that [Officer
Schmidt] had been deemed to be non-credible by one state
and one federal judge?
Felder’s Brief at 4.
A criminal defendant seeking to assail a guilty verdict and retry a case
with after-discovered evidence must clear four hurdles. He must convince the
trial court “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. Padillas, 997 A.2d 356, 363
(Pa. Super. 2010). “The test is conjunctive; the defendant must show by a
preponderance of the evidence that each of these factors has been met in
order for a new trial to be warranted.”
Id.
If the trial court does not grant a new trial, the four hurdles become
even harder to clear on appeal due to our scope and deferential standard of
review.2 Nearly a century ago, the Supreme Court of Pennsylvania stated that
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2 “The bar continually struggles with what these terms mean, as well as with
ascertaining and applying the appropriate standard and scope of review to a
given issue on appeal.” Jeffery P. Bauman, Standards of Review and Scopes
of Review in Pennsylvania — Primer and Proposal, 39 Duq. L. Rev. 513 (2001).
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the implications of after-discovered evidence “are peculiarly within the
discretion of the trial court.” Simmons-Boardman Pub. Co. v. Am. Boron
Prod. Co., 128 A. 511, 511 (Pa. 1925) (emphasis added). Hence, when
reviewing such matters, our standard of review is “an abuse of discretion.”
Padillas at 361. “Discretion is abused when the course pursued represents
not merely an error of judgment, but where the judgment is manifestly
unreasonable; where the law is not applied; or where the record shows that
the action is a result of partiality, prejudice, bias, or ill will.”
Id.
Felder’s motion for extraordinary relief sought a new trial. “The scope
of review of a decision to grant [or to deny] a new trial is dictated by whether
the trial court has set forth specific reasons for its decision or leaves open the
possibility that reasons in addition to those stated support the award of a new
trial.” Commonwealth v. Widmer, 744 A.2d 745, 750 (Pa. 2000). If the
trial court’s decision “leaves open the possibility that reasons exist to support
its decision in addition to those actually stated, an appellate court will
undertake a broad review of the entire record.”
Id. “However, where the trial
court indicates that the reasons stated are the only basis for which it ordered
a new trial, an appellate court must confine the scope of its review to the
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See also Aldisert, WINNING ON APPEAL (1996). Unfortunately, these words
remain as true today as they did 20 years ago. Felder claims our standard of
review for the denial of a new trial based on after-discovered evidence is “an
in-the-interests-of-justice standard.” Felder’s Brief at 2. And he asserts our
scope of review is “the record.”
Id. Neither of those things is a standard or
scope of review. Professor Bauman’s article sets forth a clear understanding
of these critical terms and how they can guide the practitioner in framing an
effective appellate argument.
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stated reasons.” Id. “A review of a denial of a new trial requires the same
analysis as a review of a grant.” Harman ex rel. Harman v. Borah,
756
A.2d 1116, 1122 (Pa. 2000) (citing Widmer).
Here, the trial court relied on different portions of the record to analyze
three of the four prongs of the after-discovered evidence test. It then gave
specific and distinct reasons for denying Felder a new trial at each of the three
prongs. Thus, as discussed below, our scope of review mirrors what the trial
court examined when it decided each prong.
First, the trial court found that Felder could have obtained the evidence
prior to trial. The court explained that the 2018 cases predated Felder’s trial
and “there is nothing in the record indicating that the evidence was solely in
the possession of the Commonwealth or that the defense could not have
discovered it by exercising due diligence.” Trial Court Opinion, 5/18/2020, at
4. Thus, the trial court reviewed the whole record and found it devoid of any
proof to establish the first prong. Because the trial court relied on the whole
record when deciding the first prong, our scope of review for the first prong is
plenary. See Widmer, supra.
Regarding the third prong,3 the court examined the after-discovered
evidence and Felder’s stated purpose for seeking a retrial based upon it. As
such, our scope of review for the third prong of the test is limited to the 2018
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3 The trial court did not analyze the second prong. Presumably, the trial court
concluded that Felder had satisfied it.
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court records themselves and Felder’s proposed purpose for them: impugning
the credibility of Officer Schmidt. See Widmer, supra.
Lastly, the trial court explained that the 2018 court records would have
had no impact on the verdict, even if Felder had presented them at trial. Both
officers were deemed credible, and “Officer Marchetti presented testimony
sufficient by itself to sustain [the] verdict.” Trial Court Opinion, 5/18/2020,
at 4. Hence, as to this prong, the trial court limited its consideration to the
testimony of the two officers. Accordingly, our scope of review for the fourth
prong is limited to the officers’ testimony.
With our scope of review for each prong in mind, we turn to Felder’s
arguments. Felder asserts the “trial court abused its discretion and violated
the interests of justice standard” by denying him a new trial. Felder’s Brief at
8. However, he does not explain which type of abuse of discretion
(misapplication of law, manifest unreasonableness, or prejudice) he thinks
occurred. See Padillas, 997 A.2d at 363. Instead, he extensively reproduces
Padillas and then requests a new trial by repeating the arguments he made
below, as if we review such matters de novo. Felder’s Brief at 8-14.
Conspicuously absent is any link between this argument and the abuse-of-
discretion standard of review. See Padillas,
997 A.2d at 361. Thus, Felder
does not contend – much less persuade us – that the trial court abused its
discretion when applying any prong of the after-discovered-evidence test.
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The Commonwealth also advances two arguments for granting Felder a
new trial. It similarly ignores our limited role as an error-correcting, appellate
court.
First, like Felder, the Commonwealth disregards our deferential standard
of review and simply argues that, in its view, the trial court erred. Rather
than explain how the trial court abused its discretion in applying the four-
pronged test for after-discovered evidence, the Commonwealth disagrees with
the trial court’s judgment at each step. “The first, second, and fourth prongs
are satisfied in this case,” the Commonwealth asserts. Commonwealth’s Brief
at 10. Also, “Under the third prong, appellate courts have recognized certain
limited exceptions where impeachment evidence can require a new trial, and
the specific facts at issue warrant making such an exception in this case.” Id.
at 10-11.
Notably, the Commonwealth agrees with the trial court that the “after-
discovered evidence here would be used solely for impeachment purposes.”
Id. at 11. However, it requests that this Court apply a limited exception to
the third prong of the after-discovered-evidence rule. The Commonwealth
relies on two factually distinguishable cases. In one case, only a single witness
testified for the prosecution at trial, and the Commonwealth expressly rejected
that witness’s credibility on appeal. Id. at 12 (citing Commonwealth v.
Williams, 215 A.3d 1019 (Pa. Super. 2019). In fact, in Williams, the
Commonwealth avowed not to call that witness in the future. In the other,
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the Commonwealth’s key witness recanted. Id. (citing Commonwealth v.
McCracken,
659 A.2d 541 (Pa. 1995)).
Here, two witnesses testified to Felder’s unlawful possession of the
firearm. Neither has recanted. Thus, the facts supporting the limited
exception to the third prong were not present in this case. Moreover, nothing
in the Commonwealth’s brief indicates that the trial court abused its discretion
by applying the general rule, rather than the limited exception to the
prohibition on after-discovered evidence being used for impeachment.
Both the Commonwealth and Felder improperly argue the alleged trial-
court error. They attempt to litigate the after-discovered-evidence issue on
appeal de novo, as if this Court could simply substitute its judgment for that
of the trial court. But this Court has no authority to second guess a ruling
committed to the sound discretion of the trial court. See Padillas, supra;
see also Simmons-Boardman Pub. Co., supra. After-discovered evidence
is “peculiarly” a question in the trial court’s discretion, because that court is
uniquely positioned and qualified to appraise the reliability of the original trial
and the proposed evidence’s impact upon it. Id. at 511.
Curiously, the Commonwealth’s second argument for reversal does not
raise a trial-court error. Instead, the Commonwealth would have us reverse
based on its own procedural error. According to the Commonwealth, it
violated the Constitution of the United States, as applied in Brady v.
Maryland, 397 U.S. 742 (1970), and Pennsylvania Rule of Criminal Procedure
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573(B)(1)(a), by not divulging the 2018 court records. See Commonwealth’s
Brief at 15-18.
Whether the Commonwealth violated Brady or the procedural rule is
not before us on this appeal. We remind the Commonwealth that this Court
does not directly review the conduct of prosecutors. Instead, under Brady,
its progeny, and the Rules of Criminal Procedure, we review the trial court’s
appraisal of prosecutorial acts or omissions, and whether those actions
warrant a new trial.
Our scope of review — and our appellate authority — extends to trial-
court errors that an appellant has alleged. Our scope of review does not reach
the errors of a party, even where, as here, the government is a party and it
confesses constitutional violations. Pennsylvania has a right-for-any-reason
doctrine that permits us to expand our scope of review to affirm the trial court
on any basis. However, Pennsylvania lacks the corollary doctrine of basic and
fundamental error which would allow us to correct egregious errors that an
appellant or his counsel has overlooked. Compare Commonwealth v.
Hamlett, 234 A.3d 486, 489 (Pa. 2020) (holding that Superior Court’s sua
sponte finding of harmless error to affirm criminal convictions is part of the
right-for-any-reason doctrine) with Commonwealth v. Clair,
326 A.2d 272,
273 (Pa. 1974) (prohibiting invocation of the basic-and-fundamental-error
doctrine in criminal matters; stating that such matters are more properly
resolved through the post-conviction-relief process).
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In this case, the trial court did not decide if the Commonwealth violated
Brady or the Rules of Criminal Procedure, because Felder did not raise those
issues in his 1925(b) Statement. Additionally, he did not cite Brady or the
rules of procedure in his appellate brief. See Felder’s Brief at iii, 4. “Issues
not presented in the [appellant’s] Statement of Questions Involved portion
of a brief will not be considered. Pa.R.A.P. 2116(a). Also, an issue identified
on appeal but not developed in the appellant’s brief is abandoned and,
therefore, waived.” Commonwealth v. Heggins, 809 A.2d 908, 912 n.2
(Pa. Super. 2002) (emphasis added). Because Felder, as the appellant, has
not raised the issues of whether the Commonwealth violated Brady or the
Pennsylvania Rules of Criminal Procedure in this Court, we may not reach
them during this direct appeal. Clair forecloses this possibility, as do the rules
of waiver. Felder waived any Brady-violation claim on appeal.
Turning to the trial court’s decision that the after-discovered evidence
at issue did not warrant a new trial, we recall that the four-prong “test is
conjunctive; the defendant must show by a preponderance of the evidence
that each of these factors has been met in order for a new trial to be
warranted.” Padillas, 997 A.2d at 363. If the trial court did not abuse its
discretion regarding any of the three prongs upon which it relied to deny Felder
a new trial, we must affirm. See
id. We need only address the trial court’s
analysis of the third prong of the test, as it is dispositive.
Under the third prong, the party seeking a new trial must prove to the
trial court that the after-discovered evidence would “not be used solely to
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impeach the credibility of a witness . . . .” Id.,997 A.2d at 363. The trial
court found that the 2018 court records, upon which Felder based his motion
for a new trial, would only impeach the credibility of Officer Schmidt. As
mentioned, the Commonwealth agrees. See Commonwealth’s Brief at 11.
Counsel for Felder admitted this below. He told the trial court that, if
the Commonwealth filed a motion in limine to exclude the records at a retrial
on the grounds of relevance, then Felder would meet the objection on “the
issue of credibility.” N.T., 5/9/2020, at 10. Indeed, this was the only answer
counsel could give; otherwise, the 2018 court records would be irrelevant.
See Pennsylvania Rule of Evidence 401.
The trial court’s judgment that Felder’s motion for extraordinary relief
did not meet the third prong of the after-discovered-evidence test interpreted
the law and Rule of Evidence 401 correctly. Moreover, that judgment is well
reasoned. Finally, there is no claim or anything of the record to establish that
the judgment was the product of bias, prejudice, or ill will. In short, no abuse
of discretion occurred.
Thus, we may not usurp the trial court’s discretional ruling that Felder
does not deserve a new trial based on after-discovered evidence. We dismiss
his sole appellate issue as meritless.
Judgment of sentence affirmed.
Judge McCaffery joins the Opinion.
Judge King concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2021
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