Commonwealth v. Perrin

258 A.3d 496 (Table)

COMMONWEALTH of Pennsylvania

v.Dontez PERRIN, Appellant

No. 1642 EDA 2020

Superior Court of Pennsylvania.

Filed: June 4, 2021

Reargument Denied August 17, 2021

MEMORANDUM BY McCAFFERY, J.:

Appellant, Dontez Perrin, appeals from the August 18, 2020, order entered in the Philadelphia County Court of Common Pleas, denying his motion for a new trial. Appellant's motion was first raised in 2011, and this matter now comes before this Court a fourth time.¹ Most recently, another panel of this Court remanded for the trial judge, who was newly appointed to this case, 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." Perrin III , 11 EDA 2018 (unpub. memo. at 9). Rather than present any witnesses, however, Appellant and the Philadelphia District Attorney's Office's Conviction Integrity Unit filed a joint memorandum of law and stipulations of fact, stipulating not only as to what Appellant's witnesses would testify, but also that the witnesses were credible. The trial court declined to accept the joint stipulations and denied Appellant's motion for a new trial. On appeal, Appellant contends the court erred in not accepting the joint stipulations — an argument joined by the Commonwealth. We affirm.

This Court previously summarized the underlying facts:²

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.

Perrin I , 59 A.3d at 664.

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,³ and related offenses. This 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.⁴ On November 16, 2010, the trial court imposed an aggregate sentence of five to 10 years' imprisonment.

We now set forth the relevant procedural history in detail. Following the reinstatement of his direct appeal rights nunc pro tunc , Appellant appealed to this Court on April 29, 2011. Meanwhile,

[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.

Perrin I , 59 A.3d at 665. The Commonwealth opposed Appellant's motion and argued the judgment of sentence should be affirmed.

On January 3, 2013, in a published opinion, a divided panel of this Court granted Appellant's motion for remand.⁵ We vacated Appellant's judgment of sentence and remanded for Appellant to present his claim for a new trial before the trial court. The Commonwealth sought allowance of appeal in the Pennsylvania Supreme Court, which was granted. In a per curiam order, the Supreme Court vacated this Court's decision and remanded for reconsideration in light of that Court's then-recent decision in Commonwealth v. Castro , 93 A.3d 818 (Pa. 2014).⁶ Perrin , 103 A.3d 1224.

On remand from the Supreme Court, the same panel determined, in a January 12, 2015, published opinion, that the Castro decision did not compel a different result. Perrin II , 108 A.3d at 53. Concluding that "Appellant described the evidence he will offer at the hearing with sufficient specificity to satisfy our Supreme Court's requirements," the panel again remanded "this case for an evidentiary hearing and a trial court determination of whether a new trial is warranted." Id.

The trial court conducted the evidentiary hearings on August 25 and November 2, 2017. Appellant presented

the testimony of Special Agent Majarowitz and Brown, but not Perry. Special Agent Majarowitz testified that Brown was a cooperating witness against his co-defendants who committed armed robberies of Philadelphia area pharmacies. [The agent] testified that in an interview prior to trial, Brown told him that Perry, his cellmate, stated that he lied about [Appellant's] involvement in the robbery [in the instant matter]. Special Agent Majarowitz ... also stated that Brown did not receive any additional benefit at his own sentencing for the information about Perry.

Brown testified ... that he did not know [Appellant] but was cellmates with Perry for about two months at the Federal Detention Center in Philadelphia. He testified that Perry told him that he lied on the stand about [Appellant's] involvement because he was hoping to get a more lenient sentence. Brown testified that he only told Special Agent Majarowitz about Perry because he felt it was the right thing to do, not because he believed that he had to do so to get sentencing consideration in his case.

Perrin III , 11 EDA 2018 (unpub. memo. at 4-5).

As stated above, Perry did not testify, although "the certified record reflect[ed] that both [Appellant] and the Commonwealth made ongoing attempts to secure his testimony and arranged for him to testify from prison by video." Perrin III , 11 EDA 2018 (unpub. memo. at 8). Nevertheless, Perry "refused to go to the video screen in the prison to testify at the hearing[.]" Id. at 8.

On December 12, 2017, the trial court denied Appellant's motion for a new trial, finding that because he failed to present Perry, Brown's and Special Agent Majarowitz's testimony "was hearsay that [Appellant] could only use to impeach Perry's credibility, a purpose prohibited by Pennsylvania precedent." Perrin III , 11 EDA 2018 (unpub. memo. at 5).

Appellant appealed, arguing Brown's and Special Agent Majarowitz's testimony was admissible evidence, and "if the trial court finds Brown's testimony to be credible, [Appellant] has established that he is entitled to a new trial." Perrin III , 11 EDA 2018 (unpub. memo. at 6). On April 23, 2019, another panel of this Court vacated the trial court's ruling, in an unpublished memorandum. The panel determined Appellant "was unable to procure Perry's attendance through ‘reasonable means,’ ... Perry was [thus] ‘unavailable’ within the meaning of Pa.R.E. 804 [,]" and Brown's and Majarowitz's testimony was not excludable hearsay. Id. at 7-9, citing Pa.R.E. 804(a)(5)(B) ("A declarant is considered to be unavailable as a witness if [they are] absent from the ... hearing and the statement's proponent has not been able, by process or other reasonable means, to procure ... the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b) [(3)]."), (b)(3)(B) ("The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: ... A statement that ... is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.").

This Court thus granted Appellant relief as follows:

[W]e vacate the court's order denying [Appellant's] motion for a new trial and remand for the determination of whether Brown's testimony was credible so as to justify a new trial. We note that the original trial court judge who decided [Appellant's] claim is no longer sitting. Hence, on remand, we direct the jurist appointed to handle this matter 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 .

Perrin III , 11 EDA 2018 (unpub. memo. at 9) (citation omitted and...