Acceptance of Newly Discovered Evidence; Cumulative and Corroborating Evidence

Commonwealth v. Small, 2017 WL 1423608 (unreported)(Pa. Super. 2017), allocatur granted Oct. 17, 2017, appeal docket 63 MAP 2017

Eric Eugene Small filed a Petition for allowance of Appeal from the Superior Court’s Order reversing a PCRA court’s grant of a new trial on Small’s murder conviction based on after discovered evidence. On August 9, 2012, a jury convicted Small of first-degree murder, 18 Pa. C.S. § 2502(a), and firearms not to be carried without a license, 18 Pa. C.S. § 6106(a)(1), as a result of the shooting death of William Price.

A few days before the shooting, Price was involved in an altercation with Kenosha Tyson, former girlfriend of Pedro Espada, a close friend of Small.

On the night of the shooting, Price, Small, and Espada were at Club Egypt in Harrisburg. The Commonwealth presented testimony from several eyewitnesses that Small was seen leaving the club with side by side with his arm around Price, that Price was fatally shot at that time; the medical examiner testified that the fatal shot was a contact wound.. There was also testimony that shortly after the shooting,  Espada fired several shots and Espada and Small were seen running away toward the river.

At trial, the Commonwealth contended that Small shot Price as retribution on behalf of Espada for the assault on Tyson. The defense argued that Espada was the shooter, not Small. At trial, a reluctant Commonwealth witness testified on cross-examination that Espada told him Espada shot Price from three to five feet away.  Additionally, a Harrisburg criminal detective testified that he interviewed Small’s sister.  The sister confirmed that she gave the detective a second statement in which she related that Jasmine Spriggs, another girlfriend of Espada, told the sister that Espada told Spriggs that he had shot Price.  Tyson provided a statement that she had not spoken to Espada regarding the shooting.

Small was convicted and sentenced to an aggregate term of life imprisonment. Small filed a direct appeal, asserting a weight of evidence claim that the testimony of several witnesses at trial that Espada was seen firing a gun shortly after the shooting and had admitted shooting Price to several people rendered Small’s conviction contrary to the weight of the evidence.  A Superior Court panel affirmed the judgment of sentence on the basis of the trial court opinion and rejected the weight of evidence claim. Commonwealth v. Small, 2013 WL 11253720, (Pa. Super. filed October 9, 2013) (unpublished memorandum), appeal denied, 94 A.3d 1009 (Pa. 2014).

Small filed a pro se Post-Conviction Relief Act (PCRA) petition and counsel was appointed who filed a supplementary petition alleging ineffective assistance of counsel and newly found evidence. Prior to filing, Ms. Tyson gave counsel a notarized statement, and later testified at the PCRA hearing, that the morning after the murder Espada came to her house and told her that he shot Price.

After hearings, the PCRA court ordered a new trial for Small on the claim of newly found evidence based on Tyson’s newly provided statement, which the PCRA court characterized as a recantation of silence. The Commonwealth appealed.  On appeal, the Superior Court addressed the issue of:

Whether the PCRA court erred in finding Kenosha Tyson’s testimony to be newly discovered evidence when her testimony was cumulative to Deleon Dotson’s testimony and Lisa Small’s testimony that was presented at [Small’s] jury trial wherein both witnesses testified that they heard Pedro Espada admit to shooting William Price?

Slip Op. at 7.

Superior Court found the PCRA court’s reliance on Commonwealth v McCracken, 659 A.2d 541 (Pa. 1995), was misplaced. The PCRA court, applying McCracken, concluded that Small was entitled to a new trial “because much of the evidence against [Small] was circumstantial,” and “Ms. Tyson’s testimony regarding Mr. Espada’s admission goes to the very heart of the defense’s theory at trial” was misplaced. Slip. Op. at 13.

In McCracken, the recanting witness was the only witness who identified the appellant as the perpetrator of the murder and robbery, which the Superior Court found distinguished McCracken from Small’s case where multiple eyewitnesses had identified Small walking with his arm around Price when the shooting occurred.

Instead, the Superior Court relied on Commonwealth v. Padillas, 997 A.2d 356, 361 (Pa. Super. 2010), wherein the court concluded that the “confession of defendant’s brother [was] not reliable solely as statement against penal interest; and relationship with brother was obvious motive to fabricate; court should have viewed recantation as suspect; [and] dubious circumstances surrounding recantation did not make different verdict based on confession likely on retrial.” Slip Op. at 14.  Specifically, the Superior Court noted the requirement that the evidence must be admissible and:

A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Id.

The Superior Court concluded that because PCRA accepted Tyson’s statement with no apparent corroboration, and the recantation evidence offered at the PCRA hearing was merely corroborative and cumulative of evidence already presented at trial, the PCRA court erred in its legal conclusion and abused its discretion in its grant of a new trial based on new evidence.  Superior Court reversed PCRA’s order and remanded to PCRA.

The Supreme Court granted allocatur to determine:

Whether the Superior Court erred in reversing the PCRA court’s grant of a new trial based on after-discovered evidence by finding that Tyson’s testimony was merely cumulative and corroborative of the exculpatory evidence presented at Petitioner’s trial?

For more information, contact Kevin McKeon or Dennis Whitaker.