Acceptance of Stipulations as to Witness Credibility

Commonwealth v. Perrin, 2021 WL 2288081 (Pa. Super. 2021) (unreported), allocatur granted Jan. 25, 2022, appeal docket 2 EAP 2022

This matter is back before Superior Court following the Superior Court’s remand following Dontez Perrin’s (“Perrin” or “Appellant”) appeal of an order entered by the Philadelphia County Court of Common Pleas, denying his motion for a new trial.  Superior Court summarized the relevant background as follows:

At approximately 7:00 P.M. on November 14, 2007, Rodney Thompson [(Victim)] delivered a pizza to [an] apartment[.] When the door to the apartment opened, [Victim] was greeted by two armed men whose faces were mostly covered. [Victim] recognized both men, later identified as Lynwood Perry and Amir Jackson, from seeing them in or around the pizza shop. A third man, whom [Victim] had not seen before, came up behind [Victim] and pushed him through the door, placing what felt like a gun against the back of [Victim’s] head. Perry and Jackson took the cash from [Victim’s] pockets; Jackson hit [Victim] in the head with his gun; and then the third man helped [Victim] to his feet and instructed him to leave.

[Commonwealth v. Perrin, 59 A.3d 663, 664 (Pa. Super. 2013) (“Perrin I”), vacated & remanded (per curiam order) (Pa. 2014).]

The following day, Victim viewed a photo array and identified Perry, Jackson, and Appellant as the perpetrators of the robbery. Perrin I , 59 A.3d at 664. “Appellant, who is 6’2″ tall and weighs 260 pounds, was arrested the next day sporting a full beard.” Id.

Approximately four months later, on March 11, 2008, Victim attended a line-up. Prior to viewing the line-up, Victim,

who is 6′ tall, described the third [robber] as … between 5’8″ and 5’10” tall, weighing between 140 and 155 pounds, and having no facial hair. [Victim] selected an individual other than Appellant from the lineup.

Perrin I, 59 A.3d at 664.

Appellant was charged with conspiracy, aggravated assault, robbery, and related offenses. The case proceeded to a bench trial on September 9, 2010. The Commonwealth presented two witnesses: Victim and Perry, who both testified Appellant was the third person involved in the robbery. Perrin I, 59 A.3d at 664:

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[.] Perry testified [that on the day of the robbery,] Jackson called to order the pizza, and Jackson and Perry went to wait in [the apartment] while Appellant went upstairs. Perry’s remaining account of the robbery was substantially similar to [Victim’s].

Id. at 664-65. Appellant did not testify or present any evidence.

The trial court found Appellant guilty of conspiracy, aggravated assault, robbery, possessing instruments of crime, simple assault, recklessly endangering another person, receiving stolen property, firearms not to be carried without a license, and possession of firearm by minor. On November 16, 2010, the trial court imposed an aggregate sentence of five to 10 years’ imprisonment.

Slip op. at 2-4. Perrin appealed the conviction to Superior Court. Then:

[o]n June 6, 2011, 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.

Based upon this document, Appellant filed [in the Superior] Court a petition to remand the case for a new trial or to pursue an after-discovered evidence petition with the trial court.

Slip op. at 4 (quoting Perrin I , 59 A.3d at 665). The Superior Court found in favor of Perrin and directed the trial court on remand to “hold a hearing at which [Appellant] shall present his witnesses again so that the trial court need not rely on a cold record to make its credibility determinations.” Slip op. at 1 (citation omitted). Rather than present any witnesses, however, Perrin and the Philadelphia District Attorney’s Office’s Conviction Integrity Unit filed joint stipulations, which, as summarized by Superior Court, averred that:

 (1) on September 19, 2019, defense counsel and the Commonwealth interviewed Brown, who “credibly and consistently reconfirmed the facts to which he testified at the 2017 evidentiary hearing;” (2) if Brown and Special Agent Majarowitz were called to testify at another evidentiary hearing, their testimony would be consistent with the testimony given at the 2017 evidentiary hearing; and (3) “[i]f called to testify a second time, the Parties stipulate that Brown would do so credibly;” and (4) the Commonwealth did “not stand by Perry’s credibility[,] and thus “would not call him to testify at any new trial.” Joint Stipulations, 2/24/20, at 11-13. The Joint Stipulations concluded the parties have “resolve[d] the only remaining factual dispute” — Brown’s credibility — and furthermore because they stipulate “that Perry’s testimony can no longer be credited … there is no need” for an evidentiary hearing “to present Brown’s or Majarowitz’s testimony … a second time.” 

Slip op. at 8-9. The trial court declined to accept the joint stipulations and denied Perrin’s motion for a new trial reasoning that where the Superior Court’s remand carried “specific instructions to hold a hearing at which the defense ‘shall’ present it witnesses in order for [the trial] Court to make credibility determinations,” the defense’s refusal to present any witnesses prevented the court “from making the requisite determination as to … Brown’s credibility” and “that the determination of credibility was not amenable to stipulation.” Slip op. at 10 (citations omitted). Perrin appealed to Superior Court on the basis that the court erred in not accepting the joint stipulations, arguing that circumstances changed following the Superior Court’s remand insofar as the Commonwealth since agreed that Brown was credible and “resolved the factual question of whether the evidence of Perry’s confession was credible,” therefore a stipulation of facts was binding on a court, and therefore there was no need to present Brown’s testimony a second time. Perrin further argued that the parties’ Joint Stipulations “did not propose to bind the trial court to a particular outcome,” and instead the court would “draw its own legal conclusions from [the stipulated] facts.” Slip op. at 11 (citations omitted). Additionally, Perrin argued that the trial court could not disregard the Joint Stipulations after the court granted Perrin’s unopposed motion to admit the stipulations into evidence. The Commonwealth concurred with and adopted Perrin’s arguments.

Relying on “the long standing Pennsylvania rule that the credibility of a witness is to be determined solely by the finder of fact,” Superior Court affirmed the trial court’s refusal to accept the joint stipulations. While Superior Court agreed that “parties may stipulate as to what a witness will testify to, and such a stipulation promotes efficiency in litigation,” it reasoned that:

…the parties ignore the particular circumstances underlying this Court’s April 23, 2019, remand order — the “cold record” of Brown’s and Special Agent Majarowitz’s testimony at the 2017 evidentiary hearings was not sufficient for the newly-appointed trial court “to make its credibility determinations,” and thus Appellant “shall present his witnesses again so that the trial court” could makes its own credibility findings. See Perrin III , 11 EDA 2018 at 9.

Furthermore, we note that neither the Joint Stipulations nor Appellant’s brief provide any explanation why he cannot present Brown or Special Agent Majarowitz at a new evidentiary hearing, an issue which he has litigated now for 10 years. Appellant was well on notice of the trial court’s decision to not accept the Joint Stipulations; the court denied his request or overruled his objections no less than three times. See Order, 8/18/20, at 2 n.2 (trial court did not accept the stipulation at March 12, 2020, hearing; Appellant’s objection to court’s decision was overruled at July 9th status conference; parties’ request to proceed by stipulation was again denied at August 6th hearing; and parties’ objection “to proceeding with live testimony” was overruled). Appellant does not address or refute the trial court’s observation that although defense counsel stated “presenting Mr. Brown’s testimony would be against [Appellant’s] interest,” counsel did not elaborate why. See id.

Finally, we consider that the Commonwealth did not explain how it arrived at its present position that Perry was not credible. See Joint Stipulations at 12 (“After its independent review of the circumstances of the case, including its relative weakness, the skepticism with which Perry’s testimony was initially received, and Perry’s apparent confession to Brown, and Perry’s refusal to participate in these proceedings, the Commonwealth does not stand by Perry’s credibility.”). The Commonwealth presented Perry as a witness at trial. Over the next seven years, it litigated against Appellant’s motion for a new trial, through three appeals before this Court, an appeal to the Pennsylvania Supreme Court, and the 2017 evidentiary hearings. As the Joint Stipulations point out, the Commonwealth argued against the admission of Brown’s statement on the ground it would be used to impeach Perry’s credibility. Id. at 4, 5. The reasons cited by the Commonwealth for its new position on Perry — “its independent review of the circumstances of the case, … the skepticism with which Perry’s testimony was initially received, [and] Perry’s apparent confession to Brown” — were all present when the Commonwealth learned of Brown’s statement in May or June of 2011. See id. at 12. The Commonwealth’s final factor — “Perry’s refusal to participate in” the 2017 evidentiary hearings — without more, does not explain the Commonwealth’s argument that it no longer believes the credibility of one of its two witnesses at trial. Without a satisfactory explanation about this issue, the trial court was under no obligation to simply overturn a conviction and grant a new trial.

Slip op. at 13-15 (emphasis in original) (footnote omitted).

The Supreme Court granted allocatur to consider the following issue:

Did the trial court abuse its discretion in refusing to accept the parties’ stipulations regarding the credibility of witnesses?


For more information, contact Kevin McKeon or Dennis Whitaker.