Commonwealth v. McCracken

659 A.2d 541, 540 Pa. 541, 1995 Pa. LEXIS 352

• Court: Supreme Court of Pennsylvania
• Decided: May 19, 1995
• Status: Published

Opinions

OPINION

NIX, Chief Justice.

Appellant, Terrence McCracken, appeals from the Order of the Superior Court which reversed the trial court’s grant of a new trial based on after-discovered evidence. Because we find that the trial court did not err in granting Appellant’s motion, we reverse the Order of the Superior Court and remand for a new trial.

On October 25, 1983, following a trial by jury, Appellant was found guilty of murder of the second degree,¹ two counts of robbery,² and one count of criminal conspiracy.³ Appellant filed post-verdict motions seeking inter alia a new trial based on after-discovered evidence. The trial court granted Appellant’s motion. The Superior Court reversed because it concluded that the new evidence offered by Appellant was not of such a nature that it would likely compel a different result. Commonwealth v. McCracken, 373 Pa.Super. 90, 540 A.2d 537 (1988). This Court affirmed by per curiam Order. Commonwealth v. McCracken, 524 Pa. 332, 572 A.2d 2 (1990).

In the present appeal, Appellant has again sought relief on the basis of after-discovered evidence. At issue in this case is the recantation of Commonwealth witness Michael Aldridge. The facts relevant to the instant appeal have been concisely set forth by the trial court:

[A] man entered Kelly’s Deli with a cover over his face and armed with a handgun. The man forced the owner, her daughter, and two customers into a walk-in refrigerator. Thereafter, three customers came in and the man forced the three of them at gunpoint to the rear room of the Deli. A fourth customer, Charles Johnston, came in and was shot. He died as a result of the sho[oting]. The man, after taking money from the cash register, left the Deli. As he was leaving the Deli he was observed by two customers who were about to enter the Deli. None of the people in the Deli or about to enter the Deli were able to identify [Appellant] as the man who committed the robbery and shooting. All of them gave descriptions of the man and what he was wearing.

About an hour or so after the robbery and shooting Officer James Clifton saw [Appellant] standing in the street. The clothes that [Appellant] was wearing, except his hat, met the description of that given to police by the witnesses and [Appellant] also met the description. The hat [Appellant] was wearing when Officer Clifton saw him had a brim. All witnesses had indicated that the man who committed the crimes wore a dark knit hat.

[Appellant] agreed to the performance of a gunshot residue test which was performed. Also, found in [Appellant’s home, among other things, was a dark knit cap.

At the trial the person who performed the gunshot residue test testified that in his opinion there was gunshot residue on [Appellant’s left hand.

One witness, Michael Aldridge, was the only witness who identified [Appellant]. He testified that he saw [Appellant] enter and leave the Deli. Aldridge has known [Appellant] for years and had gone to school with him. When questioned shortly after the incident he said he did not recognize the person he saw enter and leave the store.

On March 21, 1983 (three days after the incident) Al-dridge gave another statement to the police. In that statement he stated that [Appellant] was the person that he saw enter and leave the Deli.

On April 7, 1983 (about three weeks after the Kelly’s Deli incident) John Robert Turcotte, Jr. and William V. Verdekal were arrested in the Borough of Clifton Heights, Delaware County, Pennsylvania during the commission of a robbery. Turcotte had a handgun and tests on the handgun indicated that the bullet that killed Charles Johnston had been fired from the handgun that was in Turcotte’s possession.

The Commonwealth attempted to connect [Appellant] with Turcotte and Verdekal by testimony that [Appellant] was a helper of Turcotte’s in Verdekal’s furniture delivery operation just before the Christmas holidays.

The Commonwealth charged Defendants Verdekal and Turcotte in the Kelly’s Deli case. The cases were severed for trial. Turcotte would fit the description that was given by witnesses of the man who committed the robbery and shooting at Kelly’s Deli.

[Appellant’s] defense was alibi and that Turcotte committed the crime. The explanation of the residue found on his hand was that he had been helping a friend work on an automobile. Turcotte had been charged with other robberies and [Appellant] presented some witnesses in those cases to show modus operandi and to show that the handgun had been in Turcotte’s possession for some time.

Commonwealth v. McCracken, Nos. 1584 March 1983; 2369 May 1983, slip op. at 3-6 (C.P. Delaware County Apr. 13, 1992). Following a trial by jury, Appellant was found guilty of murder of the second degree, two counts of robbery, and one count of criminal conspiracy. The trial court reasoned that because the victims’ descriptions of the perpetrator fit both Turcotte and Appellant, and that Turcotte had the murder weapon in his possession, the jury must have placed considerable weight on Aldridge’s identification testimony. Id. at 10. The history of Aldridge’s involvement in this case has been aptly summarized by the trial court:

Aldridge when first questioned (March 18, 1983) by the police stated that he could not identify the person he saw enter and leave Kelly’s Deli. When questioned the second time (on March 21, 1983) he said that he could identify the person he saw. He stated that the person was [Appellant]. In that statement he indicated that he was less than a block away from Kelly’s Deli when he saw the perpetrator enter and leave the Deli and that the person was [Appellant]. His testimony at the Preliminary Hearing conformed to the March 21,1983 statement he gave to the police. On April 8, 1983 he gave another statement to the police. In that statement he indicated that he was walking toward McDade Boulevard approaching its intersection with Juliana Terrace when he saw [Appellant] walking on McDade Boulevard in the direction of Kelly’s Deli. He stated that [Appellant] was in front of the Clam Tavern at the time. He stated that [Appellant] looked directly at him (Aldridge) and waved to him.

Aldridge in his trial testimony testified that he made the first statement to the detectives because he did not want to get involved. In his trial testimony he testified that in his second statement he indicated that he was closer to Kelly’s Deli than the intersection of Juliana and McDade Boulevard so that his identification of [Appellant] would be more believable.

In the Spring of 1990 Aldridge was serving time in a New Jersey Prison. He indicated he wanted to recant the testimony he had given in the McCracken case. Mr. McDougall [trial counsel] was contacted and on March 15, 1990, Mr. McDougall went to Northern State Prison, Newark, New Jersey, to talk with Aldridge. McDougall took a Court Stenographer with him. A statement (question and answer) was taken. In the statement Aldridge stated that he was not telling the truth at [Appellant’s trial when he testified that he saw [Appellant] enter and leave Kelly’s Deli. [Appellant], through McDougall, petitioned [the trial court] to grant a new trial on the basis of Aldridge’s recantation....

At the recantation hearing, inter alia, Aldridge testified that he was not telling the truth when he said [Appellant] was the person he saw entering and leaving Kelly’s Deli. He testified that he did not know who it was he saw entering and leaving the Deli. He testified that no one pressured or induced him to make the recantation statement to Mr. McDougall or to appear in Court at the recantation hearing. He testified that he was at the hearing because he wanted to clear his conscience and that he thinks [sic] [Appellant] should get a “fair day in Court”. He testified that he was aware that he could face a perjury prosecution. He testified that detectives kept repeating [Appellant’s name to him and suggesting [Appellant] was the perpetrator to the extent that he began to believe [that Appellant] was the perpetrator. He also testified that his female probation officer came to the detectives’ office while he was there and that he was immediately taken off of probation. He admitted to being beaten, and admitted to threats to himself and to his family. He admitted to writing letters to New Jersey prison authorities to the effect that he feared for his safety in prison because he testified in [Appellant’s case. In those letters he mentioned members of the Warlocks’ gang being in prison and the beating by one Jerome Ambercelli who apparently was his cell mate. In the letters he was asking for protective custody and transfers to other prisons.

Id. at 9-12 (emphasis omitted).

The Commonwealth presented several witnesses at Al-dridge’s recantation hearing to support its contention that Aldridge had been threatened to recant. The trial court found all these witnesses to be credible; however, it observed that there was no evidence that Appellant had any part in the beatings of Aldridge or the threats to him and his family. Id. at 14.

The trial court also determined that the other evidence of threats and intimidation directed toward Aldridge had reasonable alternative explanations. It concluded that Aldridge’s letters to New Jersey prison authorities were written not only out of fear, but also out of a desire to be transferred to a prison facility closer to Aldridge’s home. Id at 19. The court also found that Aldridge’s beating in prison was solely the result of his reputation as a snitch and unrelated to his testimony in the McCracken case. Id. at 20-21. This finding was based on the considerable time lapse between the threats and beatings and the time that Aldridge recanted his identification. Id. at 20. The court was additionally persuaded by the fact that Aldridge’s recantation statement did not necessarily exclude Appellant as the perpetrator. Id. at 21. It reasoned that if Aldridge had been in fear for his safety to the extent that the Commonwealth claimed, he surely would have changed his statement to say that Appellant was not the person he saw enter and leave Kelly’s Deli rather than say he was uncertain whether the person he saw was Appellant. Id. Although it indicated that it disbelieved much of Aldridge’s testimony at the recantation hearing, the trial court concluded that Aldridge was telling the truth when he stated that he did not know the identity of the person that he saw enter and leave Kelly’s Deli. Id. at 21, 28.

The trial court ordered a new trial because it was convinced that a different verdict would likely result from the recantation testimony, Mr. McDougall’s testimony, and the evidence presented at Appellant’s trial. Id. at 29-30. On appeal by the Commonwealth, the Superior Court held that the trial court committed an abuse of discretion in granting a new trial on the basis of Michael Aldridge’s recantation. Commonwealth v. McCracken, No. 696 Philadelphia 1992, slip op. at 10 (Pa.Super. Dec. 31, 1992). It opined that Aldridge’s recantation was motivated by freedom from further harassment and abuse rather than any desire to clear his conscience. Id. We conclude that the Superior Court erred in so holding and therefore reverse its Order which reversed the trial court’s grant of a new trial.

Our consideration of the after-discovered evidence offered by Appellant is tempered by the fact that recantation is one of the least reliable forms of proof, particularly when it constitutes an admission of perjury. Commonwealth v. Anderson, 466 Pa. 339, 342, 353 A.2d 384, 386 (1976). In its opinion accompanying the Order granting a new trial, the trial court indicated its awareness of the inherent unreliability of Aldridge’s recantation and observed that “Aldridge is no paragon of truth.” Commonwealth v. McCracken, Nos. 1584 March 1983; 2369 May 1983, slip op. at 14 (C.P. Delaware County Apr. 13, 1992). Notwithstanding this fact, the court indicated that it had presided over every proceeding in this case with the exception of the first bail hearing and preliminary hearing. Id. Having had the opportunity to listen to the testimony and observe the demeanor of the witnesses in this case, the court noted that “there are things which [it] can find which might come as a surprise to those who have not heard the actual testimony and seen the actual witnesses testify.” Id. at 19.

This Court has recently reaffirmed the well-established standard for the consideration of after-discovered evidence.

After-discovered evidence can be the basis for a new trial if it: 1) has been discovered after the trial and could not have been obtained at or 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) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Wilson, 538 Pa. 485, 511, 649 A.2d 435, 448 (1994) (citations omitted). In addition, “an appellate court may not interfere with the denial or granting of a new trial where the sole ground is the alleged recantation of state witnesses unless there has been a clear abuse of discretion.” Commonwealth v. Coleman, 438 Pa. 373, 377, 264 A.2d 649, 651 (1970) (citations omitted).

We find that the recantation of Michael Aldridge fits squarely within the test for after-discovered evidence. It is clear that Aldridge’s consistent statements to the police and testimony at Appellant’s preliminary hearing and trial foreclosed the possibility that defense counsel could have persuaded Aldridge to change his statement concerning the identity of the perpetrator prior to the close of trial. Moreover, Aldridge’s recantation is not merely cumulative or corroborative given the tenuous nature of the circumstantial evidence connecting Appellant to the crime and the inability of any other witness to make a positive identification of the perpetrator. In this case, where the only Commonwealth witness who identified the perpetrator has recanted his testimony, such evidence can not be considered cumulative or corroborative because the defendant claimed that he did not commit the crime in question. This was the essence of Appellant’s defense and the ultimate question in Appellant’s trial. Thus, Aldridge’s recantation is neither cumulative, corroborative, nor for impeachment purposes. Finally, as noted above, the limited evidence connecting Appellant to the crime makes Aldridge’s recantation of such nature and character that a different verdict will likely result at a retrial.

Having found that Aldridge’s recantation is after-discovered evidence, we need only look to the record to determine whether the trial court committed an abuse of discretion in granting a new trial.

In reviewing the entire record to determine the propriety of a new trial, an appellate court must first determine whether the trial judge’s reasons and factual basis can be supported. Unless there are facts and inferences of record that disclose a palpable abuse of discretion, the trial judge’s reasons should prevail.

Commonwealth v. Brown, 538 Pa. 410, 436, 648 A.2d 1177, 1190 (1994) (quoting Thompson v. City of Philadelphia, 507 Pa. 592, 599-600, 493 A.2d 669, 673 (1985)). There is no dispute that Michael Aldridge was subjected to threats against himself and his family because he was a witness for the Commonwealth in this case. The record contains two specific incidents where Aldridge was confronted by Appellant’s brother and verbally threatened in September 1983. (R.R. 29a, 31a). One month later, a written threat appeared on the school locker of Aldridge’s sister. (R.R. 33a-35a). On May 4, 1984, Aldridge was assaulted by people who kicked and punched him and said, “This one’s for Terry.” (R.R. 35a). Some twelve days later, Appellant’s brother confronted Aldridge and his father at their home which resulted in a physical altercation between Appellant’s brother and Aldridge. (R.R. 36a-37a). All of these incidents were precipitated by Aldridge’s cooperation with law enforcement authorities or his testimony against Appellant.

The next episode of harassment directed toward Aldridge occurred on November 6, 1989, over five years later, while Aldridge was incarcerated in a New Jersey prison. Aldridge had received a letter from an organization known as the Centurions⁴ in which it identified him as a witness for the Commonwealth in the McCracken case. (R.R. 38a-39a). Al-dridge testified that he believed that his cellmate had read the letter and beaten him because Aldridge was a snitch and that this did not have anything to do with his participation in any specific case. (R.R. 39a-40a, 49a).

Aldridge’s involvement in the McCracken case had received attention in the local Philadelphia newspapers as well as the television program Inside Edition. (R.R. 41a). It was this press coverage that served as the basis for Aldridge’s letters to New Jersey prison authorities in which he sought a transfer or placement in protective custody. (R.R. 42a-44a). Aldridge stated that in addition to being motivated by fear of being known as a snitch, he wrote those letters in order to obtain a transfer from the facility where he was incarcerated because it was occupied by young, violent offenders. (R.R. 47a).

There is ample evidence in the record to support the trial court’s findings regarding Michael Aldridge’s testimony at his recantation hearing. Moreover, we must defer to credibility determinations made by the trial court which had the opportunity to observe the demeanor and hear the testimony of the witnesses. Commonwealth v. Farquharson, 467 Pa. 50, 59-60, 354 A.2d 545, 550 (1976). We therefore conclude that the trial court did not abuse its discretion in granting a new trial. The harassment directed toward Aldridge from Appellant’s friends and family ceased sometime in 1984. If Aldridge were to be swayed by this intimidation, it would be likely that he would recant during the height of these threats and abuse. Instead, Aldridge recanted over five years later with no intervention from Appellant’s relatives or associates.

The trial court discounted much of Aldridge’s testimony at the recantation hearing. However, it was persuaded that Aldridge was not threatened to recant and that there were reasonable explanations for the events which took place following Aldridge’s incarceration. We therefore conclude that Appellant is entitled to a new trial based on the after-discovered evidence presented in the form of the recantation of Michael Aldridge.

The Order of the Superior Court is reversed and the Order of the trial court which granted a new trial is reinstated.

PAPADAKOS, J., did not participate in the decision of this case.

CASTILLE, J., files a dissenting opinion in which CAPPY, J., joins.

MONTEMURO, J., is sitting by designation.

1 . 18 Pa.C.S. § 2502(b).

2 . 18 Pa.C.S. § 3701.

3 . 18 Pa.C.S. § 903.

4 . Appellant contends that the Centurions are a religious group that offers help to wrongfully convicted individuals. Brief for Appellant at 14.