Commonwealth v. D'Amato

¶1CONCURRING AND DISSENTING OPINION

¶2I join the Majority Opinion, except with respect to its resolution of appellant’s after-discovered evidence claim involving William Boyle’s alleged “recantation.”1 Because I believe that this claim is resolvable now, and fails, I respectfully dissent from that portion of the opinion which orders a remand for review of Boyle’s new statement.

¶3After-discovered evidence claims may arise far earlier in a criminal matter than upon review under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541, et seq. Indeed, new evidence may be found in time for litigation before a direct appeal has been taken. Thus, Rule- 720 (formerly Rule 1410) of the Pennsylvania Rules of Criminal Procedure provides that: “A motion for a new trial' on the ground of after-discovered evidence must be filed in writing promptly after such discovery. If an appeal is pending, the judge may grant the motion only upon remand of the case.” After-discovered evidence claims are also specifically deemed cognizable under the PCRA. To obtain relief upon such a claim, however, the required showing is more specific than in other after-discovered evidence contexts. The statute provides that a PCRA *527petitioner may be eligible for relief only if he pleads and proves that his conviction or sentence resulted from “[t]he unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi) (emphasis supplied). See also Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 49-50 (2002) (affidavit of alleged “recantation” witness provided no basis for PCRA relief on after-discovered evidence claim where statement merely asserted that witness had “no knowledge” of crime and thus was not exculpatory); Commonwealth v. Clayton, 572 Pa. 395, 816 A.2d 217, 222 (2002) (opinion announcing judgment of Court by Eakin, J.) (statistics demonstrating infrequency with which clemency is granted provided no basis for PCRA relief on after-discovered evidence claim because such statistics were not exculpatory); Commonwealth v. Gallman, 838 A.2d 768, 777 n. 7 (Pa.Super.2003) (citing Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 588 (1999), and recognizing heightened standard under PCRA that alleged after-discovered evidence must be “exculpatory”).2

¶4I certainly agree with the Majority that recantation evidence can fail outright if the fact-finder hears the witness and deems his testimony non-credible; indeed, given the notorious unreliability of recantation testimony and the concomitant admission of perjury, and the heightened standard attendant upon it, it is an exceedingly difficult claim upon which to prevail. However, I do not believe that the only reason recantation testimony can fail is if it is deemed non-credible, and thus, I do not believe that a hearing and credibility findings are always required to resolve such a claim. Where the issue is resolvable as a matter of law based on the existing record—i.e., where the proffered evidence, even if deemed *528credible, would not meet the PCRA standard—a remand is not necessary.

¶5Even assuming the best possible scenario for appellant upon remand-—i.e., that Boyle would repeat his “can’t recall recantation” under oath before the PCRA judge, and his necessary admission that he perjured himself at trial; and that the PCRA judge would find Boyle’s new testimony credible— PCRA relief still cannot issue, as a matter of law, because: (1) Boyle’s new account is not exculpatory; and (2) it is not of such a nature that it likely would have changed the outcome of the trial. There is nothing in the recantation tending to exonerate appellant in Boyle’s belated claim, contrary to his trial testimony, that he did not provide appellant with a gun similar to the never-found murder weapon on the day of the murder. Moreover, as the Majority makes clear in rejecting other of appellant’s claims, the direct evidence of appellant’s guilt in this case was “abundant,” including appellant’s detailed confession, which this Court recognized on direct appeal was the “ ‘critical and most damaging evidence introduced at trial’.” Majority op. at 508, 856 A.2d at 817 (quoting Commonwealth v. D Amato, 514 Pa. 471, 526 A.2d 300, 304 (1987)). That devastating confession was corroborated by eyewitness testimony and by appellant’s post-murder flight evidencing a consciousness of guilt. While Boyle’s testimony that he provided appellant with a gun similar to the murder weapon was circumstantial evidence that was helpful in securing the conviction, offering Boyle’s new statement to contradict that testimony would not likely lead to a different verdict. The recanting statement—“I did not give appellant a gun”—is not relevant except to impeach Boyle’s former relevant testimony that he did, in fact, give appellant a gun. Furthermore, Boyle’s recantation, even if admitted, would not erase the former testimony if the matter were retried. Rather, a new jury would be faced with the same damning confession, the same corroborating eyewitness testimony, and the same guilty post-murder conduct, accompanied still by Boyle’s former testimony, admissible as substantive evidence but now im*529peached by his new story. This impeaching evidence, in my view, could not possibly change the outcome of the earlier verdict.

¶6I recognize, as the Majority does, that the PCRA court, in an apparent oversight, did not address this claim. I also recognize our precedent suggesting that remand is appropriate where the PCRA court’s failure to address a claim impedes effective appellate review; or where a failure to address the claim below (particularly in the pre-dismissal notice) has impaired the petitioner’s ability to amend his PCRA petition and better develop the claim; or where the PCRA court adopts the Commonwealth’s response rather than conducting an independent review. See generally Commonwealth v. (Craig) Williams, 566 Pa.553, 782 A.2d 517 (2001); Commonwealth v.(Roy) Williams, 557 Pa.207, 732 A.2d 1167 (1999). In my view, however, this is not an instance in which the PCRA court’s lapse impedes either appellant’s ability to prosecute his claim or impedes this Court’s present ability to resolve the claim. For the reasons stated above, the claim clearly fails as a matter of law. See Bond, 819 A.2d at 50; Clayton, 816 A.2d at 222. In such an instance, I believe a remand is futile and, consistently with this Court’s recent decisions in Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 659, n. 10 (2003) (remand of claims is unnecessary, despite concerns arising under (Craig) Williams, where those claims involve questions of law that can be resolved on existing record); and Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1024-25 (2003) (remand for proper development of layered ineffectiveness claim is unnecessary where appellant has failed to prove underlying allegation of trial counsel’s ineffectiveness), I would resolve the claim now.

¶7Because I would deny relief on the after-discovered evidence claim involving Boyle, I dissent from the remand order.