Commonwealth v. Perrin, 2013 PA Super 1, 1/3/2013 (17 pages)

Three men confronted a delivery man who delivered a pizza to an apartment they were in. The delivery man recognized two of the men, even though their faces were covered, from their being at the pizza shop.  A third man came up behind the delivery man and pushed him through the door and held to the back of his head something that felt like a gun. The men the delivery man knew took his money, and one of then hit him on the head with his gun, The unknown man helped him to his feet and told him to leave.

The next day, the delivery man viewed a photo lineup and picked out the men he knew, as well as the Defendant, Perrin, who was 6’2” tall and weighed 260 lbs. Perrin was arrested the next day, sporting a full beard. Five months later, the delivery man attended a line up. He described the third man as 6’ tall and weighing 140-155 lbs, and having no facial hair. He picked out someone else other than Perrin,

At the trial, Perrin’s co-defendants said Perrin was the third man. The delivery man was not clear about how much of the third man’s face he could see during the robbery, but was clear that Perrin was him. Perrin was convicted, and following sentencing, filed an appeal.

While the appeal was pending, the prosecutors gave defense counsel a communication from the FBI. It consisted of a summary of an interview with another man who said that while incarcerated with one of Perrin’s co-defendants, he admitted to lying about Perrin because “someone had to ‘go down’ for it.” Defense counsel immediately filed a petition with the Superior Court for a retrial or leave to pursue and after discovered evidence hearing with the trial court, but was told to raise the matter in his brief, which he subsequently did.

Pa.R.Crim.Pro. 720(c) requires that an after discovered evidence claim must be raised promptly during the appeal process and should include a request for remand to the trial court.  The elements of a successful after discovered evidence claim are: it “(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.” Perrin satisfied the first two prongs: there was no argument that the evidence could not have been found earlier, and Perrin offered no evidence at trial that he did not participate in the robbery.

The Court found that the co-defendant’s statement went beyond impeachment: the witness admitted perjuring himself at trial and stated that the Defendant had nothing to do with the crime. This merited vacating the judgment of sentence and remanding the matter for a hearing on just how much the evidence would exculpate Perrin versus simply impeaching the co-defendant. The lower court will decide if the third and fourth pri\ongs are satisfied and a new trial necessary.