Can I use new evidence to overturn a criminal conviction?
If the defense learns of new evidence after the defendant has been convicted but while the defendant is still serving a sentence, it may be possible to obtain a new trial by filing a post-sentence motion or PCRA Petition. For example, if new witnesses come forward or relevant video footage is uncovered, it may be possible to use that evidence to obtain a new trial. In general, Pennsylvania law provides a number of different ways to attack a criminal conviction or guilty plea. The normal appeals process involves filing post-sentence motions and if they are denied, an appeal to the Pennsylvania Superior Court. If that is not successful, the defendant may be able to challenge a conviction by filing a Post-Conviction Relief Act Petition.
After-Discovered Evidence Motions
In addition to the normal appeals and PCRA process, there are also special motions which may be filed when the defense learns of new evidence or witnesses which would have made a difference and possibly led to a different outcome at trial. There are two types of after-discovered evidence motions, and the standard which must be met differs slightly depending on whether the case is still on appeal or whether the direct appeals have been exhausted.
Post-Sentence Motion for a New Trial
First, if the defendant has been found guilty but the case is still in the trial court for sentencing or post-sentence motions or it is still in the Superior Court for a direct appeal, the defense attorney must file a post-sentence motion with the court promptly upon the discovery of the new evidence. In order to obtain a hearing, the defendant must plead four things under Pennsylvania Rule of Criminal Procedure 720:
- That the evidence was not available at trial to the defense despite the exercise of due diligence. This means that the defense must have taken reasonable steps to investigate the case and find the evidence. If the defense attorney did not conduct any investigation of any kind and should have interviewed a helpful witness who was mentioned in the discovery, then the motion will fail this prong.
- The evidence is not cumulative. This means that if the defense already presented four alibi witnesses and would have presented a fifth alibi witness to testify to the same thing, the defense may fail this prong because the evidence would have been cumulative.
- The evidence may not be used solely for impeachment. Thus, the fact that the defendant learns that a witness had a conviction for crimen falsi would likely not warrant a new trial. Instead, the evidence must be substantive – meaning a new witness who would testify to an alibi, or a new scientific method for testing DNA or fingerprints and corresponding results that would show that the defendant could not have committed the crime.
- That the evidence would have resulted in a different verdict. This is often the hardest prong as witnesses who wait years to come forward may have credibility problems, and ultimately, the trial judge must rule on whether the witness would have made a difference at trial.
If the defense is able to plead all four of these things relating to the new evidence or new witness, then the trial court should hold a hearing on the after-discovered evidence motion, make findings of fact, and determine whether the defendant should receive a new trial. At the evidentiary hearing, the Court will typically hear testimony from the new witness or view the new evidence and also hear from the defense attorneys and possibly the defendant as to what steps were taken to locate the new evidence prior to trial.
After the Court holds an evidentiary hearing, the Court will then rule on each of these four factors. If the Court denies the motion, it may be appealed. However, the trial court has a great deal of discretion in evaluating these motions as the trial judge will view the testimony from the new witness and make a determination as to whether the witness is credible and would have made a difference, and these findings are difficult to overturn on appeal. Finally, it is important to note that an after-discovered evidence motion must be filed promptly.
Post-Conviction Relief Act Petitions (“PCRAs”) Based On New Evidence
If direct appeals have been exhausted and the defendant is still serving a sentence, the defendant may file a Post-Conviction Relief Act petition seeking a new trial based on new evidence. Ordinarily, a PCRA Petition must be filed within one year from the date of sentencing (or the date on which the appellate courts uphold the conviction if appeals were taken). However, there is an after-discovered evidence to the one-year time limit which allows a defendant to file a new PCRA Petition based on after-discovered evidence within sixty days of learning of the evidence even if the Petition is filed more than one year from the date on which the sentence became final.
A PCRA Petition based on after-discovered evidence is very similar to the aforementioned Post-Sentence Motion. However, it differs slightly in that it must be filed within sixty days if the defendant is outside of the one year deadline for a PCRA. It also requires the defendant to show he or she did not know the fact(s) upon which he or she based her petition; and (2) they could not have learned those fact(s) earlier by the exercise of due diligence.
Ineffective Assistance of Counsel
The defendant could also take two different approaches in filing the PCRA. First, the defendant could attempt to meet the same standards as explained above and try to show that although the investigation was reasonably diligent, the evidence could not be uncovered. Alternatively, the defendant could attempt to introduce the new evidence through a PCRA challenge based on ineffectiveness of counsel by arguing that the defense attorney was ineffective and should have uncovered the evidence but did not adequately investigate the case. For example, if there was an alibi witness that was known to the defense in a Robbery case, but the defense took no steps to locate that person, then the PCRA Petition could allege that trial counsel provided ineffective assistance of counsel. However, this may not satisfy the previously mentioned sixty day extension because the defendant likely knew about the alibi witness. Whether the extension would apply depends on the facts of the individual case, making it important to consult with an attorney if you believe that new evidence could make a difference for you.
Commonwealth v. Shiloh
The recent case of Commonwealth v. Shiloh provides an example of after-discovered evidence in the PCRA context. In Shiloh, the defendant was convicted of selling drugs in part based on the testimony of a co-defendant, her sister. Specifically, she was convicted of multiple counts of delivery of a controlled substance, criminal use of a communication facility, conspiracy, and endangering the welfare of children, in connection with her participation in a drug operation. Her sister testified against her at trial, she was convicted, and she received 14-30 years of incarceration at sentencing.
Ms. Shiloh exhausted of all of her appeals and ordinary PCRAs, and she eventually filed a PCRA outside of the one year deadline for filing a PCRA. In the new PCRA, she alleged that her sister, who had testified against her, had prepared an affidavit admitting that she had received benefits from the prosecution in exchange for her testimony. Her sister also admitted to lying about receiving this consideration from the prosecution at trial. Shiloh included the notes of testimony from her sister’s sentencing in which the Commonwealth confirmed the existence of the agreement and asked for a reduced sentence due to the cooperation.
The trial court dismissed the PCRA Petition as untimely, and Shiloh appealed to the Superior Court. On appeal, Shiloh argued that the new evidence would constitute after-discovered evidence and that she could not have learned of it prior to trial. Whether or not Shiloh was entitled to the benefit of the previously discussed sixty day time limit for filing an after-discovered evidence PCRA came down to whether the “public record presumption” applied to her. As a general rule, PCRA Petitioners who are not in custody are expected to exercise due diligence in investigating their cases, meaning that if there are facts contained in public records such as the guilty plea colloquy of a co-defendant, then the facts will not constitute after-discovered evidence.
The public record presumption, however, does not apply to an incarcerated, pro se petitioner. The petitioner must still show that they exercised due diligence in conducting an investigation, but the presumption will not apply because pro se prisoners do not have access to the same resources and records as someone who is represented by counsel or someone who is not incarcerated. Because Shiloh was in custody for the duration of her appeals and PCRAs, the Superior Court reversed the finding of the trial court that she should have known about the guilty plea colloquy sooner and remanded the case to the trial court for an evidentiary hearing on when exactly Shiloh discovered or should have learned that her sister had cooperated against her and received benefits for so doing.
On remand, if Shiloh can show that she had no way of knowing about the cooperation and that the cooperation would have made a difference at trial, then she could be entitled to a new trial. Thus, after-discovered evidence motions can be extremely important because they could lead to the defendant receiving a new trial.
Award-Winning Philadelphia Criminal Defense Attorneys
if you are facing criminal charges or considering an appeal, we can help. Our award-winning Philadelphia criminal defense lawyers have won countless pre-trial motions, bench trials, and jury trials, and we have also successfully resolved many cases through negotiations which resulted in excellent outcomes for our clients. We can also help you evaluate the likelihood of success in filing a PCRA Petition or direct appeal to the Superior Court. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to speak with one of our experienced and understanding defense attorneys today.