Commonwealth v. McCracken

¶1dissenting.

¶2Although the majority’s opinion acknowledges that recantation testimony is one of the least reliable forms of proof, especially when it constitutes an admission of perjury, the majority nevertheless concludes that appellant is entitled to a new trial. Because I believe that the trial court abused its discretion in granting a new trial based on the recantation testimony of Michael Aldridge, in spite of overwhelming evidence that both he and his family were threatened for over a period years for his involvement in appellant’s murder trial, thereby giving Aldridge the utmost incentive to recant his prior inculpatory testimony, I respectfully dissent.

¶3This Court has held on repeated occasions that, “[rjecanting testimony is exceedingly unreliable, and it is the duty of the [trial] court to deny a new trial where it is not satisfied that such testimony is true.” Commonwealth v. Anderson, 466 Pa. 339, 342, 353 A.2d 384, 386 (1976), quoting, Commonwealth v. Coleman, 438 Pa. 373, 377, 264 A.2d 649, 651 (1970). “There is no less form of proof, especially when it involves an admission of perjury.” Id.,466 Pa. at 342, 353 A.2d at 385. Despite this well-established standard and the fact that the trial court discounted a substantial amount of Aldridge’s testimony at the *553recantation hearing, the lower court nevertheless was persuaded that Aldridge was not threatened to recant. Due to the record’s overwhelming evidence to the contrary, the fact that the trial court seemed less than convinced, that appellant’s recantation testimony was completely reliable,1 and because it is unlikely that his new testimony would produce a different result upon retrial, the trial court clearly committed an abuse of discretion in granting appellant’s appeal for a new trial.

¶4In finding that the trial court’s order granting a new trial should be reinstated, the majority states:

The harassment directed toward Aldridge from Appellant’s friends and family ceased sometime in 1984. If Aldridge were to be swayed by this intimidation, it would be likely that he would recant during the height of these threats and abuse. Instead, Aldridge recanted over five years later with no intervention from Appellant’s relatives or associates.

¶5This conclusion, however, simply dismisses the effect that these threats had on Aldridge when they began to resurface and intensify in 1989 while he was incarcerated in a New Jersey county prison. In November of 1989, Aldridge’s involvement as a witness in appellant’s case was reported on the television news program Inside Edition and in the local newspapers. (R.R. at 40a). At the recantation hearing, Al-dridge stated in regard to the television program, “You can’t be a snitch in jail and survive.” (R.R. at 40a). In another incident in November, Aldridge was beaten by his cellmate for being a “snitch,” after his cellmate found a letter from a private investigator which connected Aldridge with the appellant’s case. (R.R. at 38a-39a). As a result, Aldridge wrote two letters to prison officials in late November of 1989 asking to be placed in protective custody or relocated to another prison stating, “... I was warned that there are members of [appellant’s] family and or friends of his here at Bordertown *554and Midstate prison.2 I was warned if I came here I would be hurt” and that “my life is in serious jeopardy.” (R.R. at 40a-45a). These letters were written within less than a year of the recantation hearing which was held in August of 1990. Also, the trial judge noted that an employee of the Internal Affairs Department of Corrections for the State of New Jersey testified that he had investigated the claims and that Aldridge’s fears appeared to be genuine. Commonwealth v. McCracken, Nos. 1584 March 1983; 2369 May 1983, slip op. at 12-13 (C.P. Delaware County Apr. 13,1992). This evidence demonstrates a compelling motive behind the recantation testimony — fear— not a desire to tell the truth.3

¶6Moreover, the final prong of the after-discovered evidence analysis requires that the evidence be of “such a nature and character” that it would most likely produce a different verdict upon retrial. Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435, 448 (1994). However, despite identifying appellant, whom Aldridge had known throughout high school, as the person he saw entering and leaving Kelly’s Deli at both the preliminary hearing and during trial, at no time during the recantation hearing did Aldridge identify any other individual as the perpetrator.4 (R.R. at 19a, 22a). Aldridge did, however, maintain that the individual that he could not now identify was wearing the same clothing that appellant was wearing when he was apprehended within approximately one hour after the robbery and shooting. (R.R. at 22a). All eight of the witnesses who observed the sole perpetrator at the time of the *555robbery and shooting gave substantially the same description as Aldridge concerning the man’s clothing. McCracken, supra, at 4; (R.R. at 32-109, Notes of Testimony of Trial from October 18,1983). This description included a red sweatshirt, dungarees and a dark knit cap. Although appellant was not wearing a dark knit cap at the time he was apprehended, which all of the witnesses had described the perpetrator as wearing, a dark knit cap was later found by the police in appellant’s home. McCracken, supra. Furthermore, appellant agreed to submit to a gunshot residue test which tested positive on appellant’s left hand. Id. Thus, because Aldridge’s newest testimony simply fails to exculpate appellant, and the Commonwealth’s case would include: (1) overwhelming circumstantial evidence of appellant’s guilt which includes the eyewitness testimony of over eight persons, (2) Aldridge’s prior inconsistent statements identifying appellant, (3) compelling evidence that Ms incentive to recant was to avoid imminent physical barm and (4) his admission of perjury; a new trial would most likely result in the same verdict. For the trial court to conclude now that Aldridge’s latest account of the events is the true version is arbitrary, especially in light of the foregoing.

¶7Accordingly, I would affirm the decision of the Superior Court reversing the trial court’s order granting appellant a new trial.

¶8Furthermore, in order for the trial court to have concluded that Aldridge’s latest account of the events warranted a new trial, the trial court would have had to disregard its own findings that the Commonwealth witnesses at the recantation hearing were “very credible”; its own finding after the hearing that Aldridge was not a “paragon of truth”; and the jury’s prior finding that Aldridge’s pre-recantation testimony was credible. McCracken, supra, at 14. The trial court would also have to, in part, disregard the facts upon which appellant’s conviction was affirmed by this Court subsequent to the first “after discovered evidence” hearing. In doing so, the trial court exceeded its role by relying on its own perception of the facts rather than on the established record. As the trial *556court readily admits, “[i]f the recantation hearing was the only proceeding in this case heard by the writer of this Opinion, a decision would probably have been made from the Bench at the end of the hearing. The decision would have been to dismiss the Motion.” McCracken, supra. Essentially, what the trial court is undertaking is a reweighing of all the evidence elicited in the various hearings in this case and is not affording the proper weight to the evidence at the present stage of the matter which it concedes is highly speculative. While a trial judge must necessarily look at newly discovered evidence or recantation against the backdrop of the entire testimony, the trial judge should view the evidence in the light most favorable to verdict winner. The trial court cannot substitute its perception of the facts for that of the jury in order to reach a conclusion that the highly unreliable recantation testimony offered here would result in a different verdict.

¶9CAPPY, J., joins in this Dissenting Opinion.