Philadelphia Criminal Defense Blog

Zak Goldstein 8/18/18 Zak Goldstein 8/18/18

NJ Supreme Court: Most Expert Testimony Concerning “Child Sexual Abuse Accommodation Syndrome” Is Inadmissible

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Supreme Court of New Jersey has decided the case of State v. J.L.G., holding that the prosecution cannot introduce expert testimony regarding “Child Sexual Abuse Accommodation Syndrome” (CSAAS) in general and its component behaviors, with the exception of delayed disclosure, at trial. Specifically, the Court found that this evidence, other than delayed disclosure, does not have a sufficiently reliable basis in science to be the subject of expert testimony. This is a truly significant decision that will no doubt affect countless child sex cases.

State v. J.L.G.

In J.L.G., the defendant was charged with first-degree aggravated sexual assault, third-degree aggravated sexual criminal sexual contact, second-degree endangering the welfare of a child, and third-degree witness tampering. The complainant in the case was the defendant’s stepdaughter. The complainant testified that the defendant abused her on a daily basis for approximately eighteen months. At one point, the defendant pointed a gun at her and threatened to hurt her, her mother, and her brother if she told anyone about the abuse. Further, the complainant did not tell anyone because she was embarrassed about the abuse.

On one occasion, a friend of the complainant’s mother visited her residence and found the defendant lying on top of the complainant with an erection. The complainant’s mother became aware of this incident and threatened to kill the defendant. However, the complainant, fearful that her mother would do something that would result in her getting arrested, denied any sexual activity was occurring. Eventually, the complainant did tell her mother about the abuse. The complainant then made a statement to the prosecutor’s office and, under the guidance of the detectives, the complainant called defendant. In these conversations, which were recorded, the defendant offered to give the complainant money if she would withdraw the allegations. The complainant also had an audio recording of the last time the defendant abused her which the Court described as “graphic.”

Police arrested the defendant and charged him with the previously mentioned crimes. At trial, the State presented evidence through various witnesses and the recorded phone conversations and interaction with the defendant. Additionally, the State also presented expert testimony. Specifically, the State called a clinical psychologist who testified about CSAAS. The defendant had filed a pre-trial motion to exclude this testimony, but the motion was denied. At the conclusion of the trial, the jury convicted the defendant on all charges. The defendant then filed a timely appeal.

What is CSAAS?

Dr. Roland Summit is credited for creating CSAAS. In 1983, he published an article which he described the syndrome as “a common denominator of the most frequently observed” behaviors of child sexual abuse victims. In essence, CSAAS testimony is used to explain how a sexually abused child behaves and why a child may not immediately report abuse. According to Dr. Summit, there are several frequently observed behaviors of child abuse victims. These “components” form CSAAS and are: secrecy, helplessness, entrapment and accommodation, delayed, conflicted, and unconvincing disclosure, and retraction. If a child were to exhibit these behaviors, according to Dr. Summit, CSAAS can be used to support the theory that the child was abused.

Notably, neither the American Psychiatric Association nor the American Psychological Association has recognized CSAAS. Further, this syndrome does not appear in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which is the authoritative list of mental disorders. CSAAS has been undermined by a number of scientific studies. Despite this, in 1993, the New Jersey Supreme Court in State v. J.Q., 130 N.J. 554 (1993) held that CSAAS had “sufficiently reliable scientific basis” to be presented to a jury. The Court opined that its introduction allowed juries to understand “traits found in children who have been abused” and thus allowed expert testimony of CSAAS to be introduced in criminal trials.

What is Expert Testimony?

To put it simply, expert testimony is testimony about a subject that is beyond the range of knowledge of the average person. Expert testimony is used in a variety of cases. To give an example, experts are frequently called to testify in drug cases. Typically, the Commonwealth would not need an expert if a defendant was charged with Possession with the Intent to Deliver and the facts demonstrated that a defendant exchanged drugs for money. However, an expert may be needed if a defendant was not seen engaging in a hand-to-hand transaction, but instead was arrested with a significant amount of narcotics on his person. The average person might not know that particular amount of drugs is enough to establish that the defendant possessed those drugs with the intent to sell them and thus the Commonwealth may need an expert to prove its case.

In New Jersey, Rule 702 of the Rules of Evidence governs the admission of expert testimony. In order to introduce expert testimony they must establish: 1) the subject matter of the testimony must be “beyond the ken of the average juror”; 2) the field of inquiry “must be at a state of the art such that an expert’s testimony could be sufficiently reliable;” and 3) “the witness must have sufficient expertise to offer the” testimony. However, this is not the end of the analysis. The trial court then must make a determination as to whether the science underlying the proposed expert testimony has “gained general acceptance in the particular field in which it belongs.” This is known as the Frye standard.

The Frye standard does not require a universal acceptance by the scientific community. Nonetheless, the proponent must show that there is general acceptance of the what the expert is going to testify to. The proponent can do this numerous ways: they can introduce judicial opinions, scientific or legal articles, and expert testimony to establish that the science is generally accepted. Notably, Pennsylvania also uses the Frye standard, whereas federal courts use a different test.

New Jersey Supreme Court Dramatically Restricts Expert Testimony Concerning CSAAS in Criminal Cases

In State v. J.L.G., the Supreme Court of New Jersey dramatically restricted the introduction of CSAAS testimony in criminal trials. First, the Court reiterated that expert testimony can only be introduced when the evidence is beyond the understanding of the average juror. In the instant case, the complainant gave what the court described as “straightforward reasons” as to why the she did not immediately report the defendant’s abuse. Specifically, she did not report because she was embarrassed, the defendant had threatened her if she reported, and she was worried that her mother would incur criminal charges if she were to disclose said abuse. Therefore, CSAAS testimony was not necessary to show why there was a delayed report. The Court went on to say that if the child cannot offer a rational explanation as to why there was a delayed report, then the prosecution can introduce expert testimony to help understand the witness’s behavior. However, this was not applicable in the instant case and thus the trial court erred in allowing CSAAS testimony in the first place.

The Court did not end its analysis there. The Court also addressed whether CSAAS testimony satisfies the Frye standard. To make this determination, the Court conducted a lengthy analysis of CSAAS and studied its origins and subsequent critiques by other experts. The Court found that there is a lack of data supporting CSAAS. The Court further highlighted that it is not in the Diagnostic and Statistical Manual of Mental Disorders and that it has not been accepted by the American Psychiatric Association and other notable associations. Further, there is limited scientific and empirical support for the majority of the individual components of CSAAS. As such, the Court found that with the exception of delayed reporting (because there is consistent and long-standing support in scientific literature to support that most child victims of sexual abuse do not immediately report their abuse), there is not enough scientific support to allow experts to testify to the other components of CSAAS.

In the instant case, this was a hollow victory for the defendant. Despite the Court agreeing with the defendant that this evidence should not have been introduced at trial, the Court found that this was a harmless error because the evidence against the defendant was so overwhelming. As such, the defendant will not get a new trial and will serve the majority of his 23 year prison term.

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Goldstein Mehta LLC Criminal Defense Attorneys

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Zak Goldstein 8/16/18 Zak Goldstein 8/16/18

PA Superior Court: Police May Stop and Search You If You’re Bleeding from a Gunshot Wound

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire — Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Edwards, holding that Philadelphia Police did not violate the defendant’s rights when they stopped and searched him because he was walking down the street while bleeding from a gunshot wound. The Superior Court relied on the community caretaker exception to the warrant requirement in finding that police did not violate the defendant's rights when they stopped him even though they did not see him personally engaged in criminal activity.

The Facts of Commonwealth v. Edwards

In Edwards, Philadelphia Police Officers were on routine patrol at around 1 am in the Kensington area. One of the officers noticed a black male, the defendant, limping in the bike lane on the west side of the street. He was walking towards the police car. As he got closer to the car, one of the officers noticed that he had blood coming down the left side of his leg. After noticing the blood, the officer attempted to get the defendant’s attention, but he ignored the officer and kept limping at a fast pace. The defendant ignored the officers as they backed up their car and tried to talk to him.

Eventually, police exited the patrol car and told the defendant to stop multiple times. The defendant initially did not stop, but he eventually turned and faced the officers. However, he continued to back away from them even after being told they were only interested in bringing him to the hospital for his leg injury. He told the officer he had been shot by a Hispanic male around the corner and that the officers should go look for the male.

The officers moved closer to the defendant, and the defendant then reached for his right jacket pocket while backing away. Based on this movement, the officers believed that the defendant was trying to hide something in his right jacket pocket. The officers also testified that the area was a high crime area known for drug sales, stabbings, shootings, and robberies. Therefore, the officers frisked the defendant, felt a hard object that they knew to be a gun in the right pocket, and then removed the gun from the defendant’s jacket. Police arrested the defendant and charged him with various VUFA charges, including possessing a concealed firearm without a license, possessing a firearm on the streets of Philadelphia, and felon in possession of a firearm.

The Motion to Suppress the Gun

After prosecutors charged the defendant with various gun charges, the defendant’s defense attorney filed a motion to suppress the gun. The motion to suppress alleged that police did not have reasonable suspicion or probable cause to stop and search the defendant because they did not see him engaged in any criminal activity and he did not ask for their help. The trial court denied the motion to suppress, finding both that police actually had probable cause to arrest him and that the police were justified in their actions due to the community caretaker doctrine. After the trial court denied the motion to suppress, the defendant proceeded by way of bench trial. The trial judge found him guilty and sentenced him to state prison after it was revealed at sentencing that he had shot himself. The trial judge also made negative comments at sentencing about the fact that although defense counsel highlighted the defendant's extensive family support, the defendant's mother was present but did not speak on his behalf.

The Criminal Appeal

Following sentencing, the defendant filed a notice of appeal to the Pennsylvania Superior Court. On appeal, the defendant challenged both the denial of the Motion to Suppress as well as the trial court’s sentence. Unfortunately for the defendant, the Superior Court affirmed the trial court’s ruling both with respects to the Motion to Suppress and the sentencing issue. The Superior Court relied heavily on the community caretaker doctrine as explained by the Pennsylvania Supreme Court in the recent case of Commonwealth v. Livingstone.

What is the community caretaker exception?

In general, the Pennsylvania and United States Constitutions require the police to get a search warrant before stopping and searching someone. However, there are many exceptions to this general rule. For example, police do not have to obtain a search warrant in order to stop someone on the street and conduct a frisk when they have reasonable suspicion that the person is engaged in criminal activity. Police also may conduct a full search of a pedestrian when they have probable cause to believe that a person has committed a crime. In addition to these exceptions for investigatory stops, the Supreme Court has also created the community caretaker doctrine or community caretaker exception to the warrant requirement.

The community caretaker doctrine anticipates the possibility that police may be motivated by a desire to render aid or assistance rather than the investigation of criminal activity. Appellate courts have reasoned that police do not just investigate and prosecute crime – they also provide first aid, intervene in crises, and maintain the peace. Accordingly, police do not always need to get a warrant in order to take action when they believe that someone is in need of assistance.

In order for this exception to apply, the police must be able to point to specific, objective, and articulable facts that would reasonably suggest to an experienced officer that a citizen is in need of assistance. When police can do that, they may be justified in conducting a stop or search without reasonable suspicion or probable cause that criminal activity is afoot. The police action must also be independent of the investigation of criminal activity, meaning it cannot be a pretext for conducting a search without the necessary level of suspicion. Finally, the level of intrusion must be commensurate with the perceived need for assistance. Thus, in Livingstone, the Supreme Court summarized the rule as follows:

“To summarize, in order for a seizure to be justified under the public servant exception to the warrant requirement under the community caretaking doctrine, the officer must point to specific, objective, and articulable facts which would reasonably suggest to an experienced officer that assistance was needed; the police action must be independent from the detection, investigation, and acquisition of criminal evidence, and based on a consideration of the surrounding circumstances, the action taken by police must be tailored to rendering assistance or mitigating the peril.”

The Superior Court's Decision

Here, the Superior Court found that the police acted reasonably and pursuant to the community caretaking doctrine. They saw the defendant limping, with a bloody leg, at 1:20 am in a dangerous area. They approached and offered medical assistance. The court found that they would have been neglecting their duties had they not done so. Further, the officer identified specific, objective, and articulable facts that would reasonably suggest to an experienced officer that a citizen was in need of assistance. The court also found that they were not looking for criminal evidence, meaning their actions were independent from the detection, investigation, and acquisition of criminal evidence. They were planning on taking the defendant to the hospital. They only frisked the defendant because he bladed his body away from the officer and placed his hand in his pocket as if he were trying to conceal something. Finally, the level of intrusion was commensurate with the need for assistance. The police had merely stopped to offer aid. Only after the defendant acted strangely by backing away, turning his body, and reaching in his pocket, did the police conduct any kind of search. The court found that that search was a legitimate safety frisk and upheld the decision of the trial court.

The Superior Court also rejected the defendant’s sentencing challenge. Here, the defendant argued that the trial court abused its discretion in sentencing him when the trial judge pointed out that the defendant’s mother was present for sentencing but did not speak on his behalf. After the trial judge made that remark, the defense attorney asked to have the mother speak, but the trial judge refused to permit her to speak. The defense ordinarily must file a post-sentence motion explaining any challenges to a sentence in order to be able to appeal the discretionary aspects of a sentence, but here, the Superior Court found that the issue was not waived for appeal because the defendant’s attorney had attempted to call the mother as a witness but been prevented from doing so. The Superior Court reached the merits of the issue, but affirmed the sentence because the judge considered a number of factors and did not base the sentence only on the mother’s failure to testify at sentencing. Therefore, the trial court did not abuse its discretion.

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Zak Goldstein 8/5/18 Zak Goldstein 8/5/18

PA Superior Court: Prosecutors May Introduce Evidence that Defendant and Recanting Eyewitness Were Incarcerated Together

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thomas, holding that the trial court properly permitted the Commonwealth to introduce evidence that the defendant and an eyewitness who later recanted were incarcerated in the same prison before trial together in order to suggest that the eyewitness recanted out of fear of the defendant. The Superior Court allowed this testimony despite the fact that the there was no concrete evidence to show that the defendant and the eyewitness had communicated while they were incarcerated together or that the defendant had pressured the witness in any way.

The facts of Commonwealth v. Thomas

Philadelphia Prosecutors charged the defendant in Thomas with first degree murder, carrying a firearm without a license (VUFA Sec. 6106), and possessing an instrument of crime. The jury found him guilty, and the trial court immediately sentenced him to the mandatory life in prison without parole on the murder charge as well as an aggregate 4.5 to 12 years of incarceration on the other charges.

The evidence at trial showed that the defendant, the decedent, and a group of other men were playing dice in Philadelphia. At some point during the game, the men concluded that the decedent was cheating. One player angrily walked away from the game, but the defendant told him that he was going to handle it. Witnesses testified that later, while the decedent was bending over to roll the dice, the defendant pulled a gun and shot at him from behind, causing the decedent to fall to the ground. The defendant then shot him two more times in the face. Two of the witnesses who testified that the defendant committed the murder were a man named K.F. and a man named E.M. Philadelphia Police responded to the scene and transported the decedent to the hospital, where he was pronounced dead.

Although K.F. gave a statement to police indicating that the defendant committed the murder, K.F. later recanted that statement and wrote a letter claiming that it was not the defendant who actually committed the murder. In response, prosecutors introduced evidence at trial that K.F. and the defendant were incarcerated at the same jail two months prior to trial. The defense attorney objected on the basis that telling the jury that the defendant was incarcerated would suggest to the jury that the defendant was a criminal, but the trial court overruled the objection and allowed the prosecution to introduce the evidence despite this potential for unfair prejudice against the defendant.

The Superior Court Appeal

After the jury convicted the defendant, he appealed to the Pennsylvania Supreme Court. As one of the main issues, he claimed that the trial court erred in admitting the evidence that he and K.F. were incarcerated in the same prison at some point prior to the trial and K.F.’s recantation. K.F. had previously claimed in a video-taped statement that he watched the defendant shoot and kill the decedent. However, K.F. was subsequently arrested on unrelated charges of his own. Within one month of his arrest and incarceration in the same jail as the defendant, K.F. wrote a letter recanting his video-taped statement. Therefore, the Commonwealth argued that the incarceration in the same jail was relevant to show both the defendant’s consciousness of his own guilt and to explain why K.F. recanted his prior statement.

On appeal, the Superior Court agreed. It recognized that the courts have long recognized that any attempt by a defendant to interfere with a witness’s testimony is admissible to show a defendant’s consciousness of guilt. Additionally, the Commonwealth may cross-examine a witness in an attempt to show that there are reasons, such as fear or intimidation, why a witness may have changed his or her story. Therefore, the Commonwealth’s cross-examination of K.F. was relevant to show both the defendant’s potential consciousness of guilt and why K.F. may have changed his statement.

At the same time, the court recognized that there could be some prejudicial effect to informing the jury that the defendant was incarcerated prior to trial. However, the court found that the trial judge sufficiently eliminated the risk of unfair prejudice to the defendant by providing a cautionary instruction. In the instruction, the trial judge informed the jury that the jury should not consider the defendant to be a bad person or a person of bad character merely because he had been arrested and incarcerated pending trial. The judge made it clear to the jury that the only reason the defendant was in jail was because he was awaiting trial for this case, not because he was serving a sentence on some other case. The judge further instructed the jury not to draw any conclusions whatsoever from the mere fact that the defendant was in jail pending trial. Therefore, the Superior Court found that the trial court properly allowed the prosecution to ask these questions. It found the defendant’s other issues waived and upheld the conviction.

The court’s opinion, of course, completely ignored the fact that it was the Commonwealth’s fault that the defendant and the witness were held in the same jail. Philadelphia has at least four county prisons in which a defendant can be held while awaiting trial, and the jails have procedures by which inmates can be held separately from each other so that they do not have contact with each other. Prosecutors have the ability to house inmates in different counties or states when necessary and routinely do so. Here, the case suggests that the Commonwealth did nothing to inform the prison that the two inmates should be housed in different facilities. The Commonwealth also appears to have introduced no evidence that the two inmates actually came into contact with each other while incarcerated or that the defendant did anything to make the witness change his story. Nonetheless, the Superior Court seems to have ignored these basic facts in finding in favor of the Commonwealth.

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If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients at trial and on appeal. We offer a free 15-minute criminal defense strategy session to any potential client. If you have been arrested or may be under investigation, call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 7/21/18 Zak Goldstein 7/21/18

PA Supreme Court: Quality of Evidence Should Be Considered When Evaluating Whether After-Discovered Evidence is Cumulative or Corroborative

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Small, holding that the quality of evidence is relevant in determining whether a defendant is entitled to a new trial based on the after-discovered evidence prong of the Post-Conviction Relief Act (hereinafter “PCRA”). In general, after-discovered evidence may help a defendant get a new trial after a conviction, but the evidence may not be cumulative or corroborative of the type of evidence that was already presented at the original trial. In Small, the Court held that stronger evidence in support of a proposition for which there was some evidence introduced at trial may require a court to grant a new trial.

Commonwealth v. Small

On March 7, 2011, the decedent was killed after he suffered a contact gunshot wound to the left side of his head after he left a local club in Harrisburg, Pennsylvania. No one saw the actual shooting, but a number of witnesses saw the defendant with the decedent moments before the shooting. The Commonwealth alleged that the defendant shot the victim because of his loyalty to a Mr. Espada. Specifically, the Commonwealth alleged that the defendant, who grew up with Espada, killed the decedent because the decedent had previously assaulted Ms. Tyson, the mother of Espada’s children.

The Commonwealth presented multiple witnesses to support this theory. Because no one actually witnessed the shooting, the Commonwealth relied primarily on circumstantial evidence at trial. For example, the Commonwealth called Ms. Tyson to testify about the decedent’s assault of her. Mr. Williams, the defendant's sister’s boyfriend, testified that he saw the defendant and Espada with the decedent moments before his demise. Although he did not see the defendant shoot the decedent, he did see the defendant standing over the decedent’s body before he fled the scene. The Commonwealth also called Mr. Evans to testify that he and a Mr. Gibson pursued the person whom they believed to be the shooter immediately after the shooting. They stopped their pursuit after someone fired two gunshots in their direction.

The Commonwealth also called Mr. Knight, who was one of the defendant's friends. He testified at trial that he saw the defendant approach the decedent and put his arm around him. He also saw the defendant running towards the river immediately following the shooting and, later on in the night, make statements such as “we did what we had to do” and “if it came down to it, pin it on my boy [Espada].” The Commonwealth also called police as witnesses. Specifically, the officers testified that they were able to track footprints in the snow that lead from the crime scene, to the riverfront, and then back to the defendant's apartment complex. Additionally, they called a forensic pathologist who testified that the decedent died as a result of a “contact gunshot wound” and that the gun that killed the decedent had to be pressed into the left side of his face. In addition to this circumstantial evidence, the Commonwealth also presented the testimony of two inmates who were former cellmates with the defendant. Supposedly, the defendant admitted to both of these cellmates that he killed the decedent.

At trial, the defense did not call any witnesses. Instead, they relied on the Commonwealth’s witnesses to establish the theory that Espada was the shooter. On cross examination, the defense was able to ascertain that Ms. Tyson had just given birth to one of Espada’s children only two weeks prior to the decedent assaulting her. Additionally, they were able to ascertain that Espada was more upset about this assault than the defendant and thus had a stronger incentive to kill the decedent. Espada was also in close proximity to the decedent prior to his murder.

Further, the defense was able to show that Espada shot at Mr. Gibson and Mr. Evans immediately after the shooting. They also were able to show that Espada had confessed, on at least two occasions, to the murder of the decedent. The defense was able to elicit this through the testimony of the defendant's sister. She testified that Mr. Espada confessed to his then-girlfriend that he had killed the decedent. Finally, in regards to the two jailhouse informants, they were able to impeach them to show that they received favorable treatment in their own pending cases in return for their testimony against the defendant.

After-Discovered Evidence

At the conclusion of the trial, the jury convicted the defendant of first-degree murder and firearms not to be carried without a license. The trial judge sentenced him to life in prison as required by law. The defendant then filed several appeals which were ultimately denied. He then filed a timely PCRA petition. The PCRA petition sought a new trial on after-discovered evidence grounds. The defendant attached as an exhibit a notarized statement from Ms. Tyson. In this statement, Ms. Tyson stated that she withheld from the police and the jury that Espada admitted to her that he, not the defendant, shot the decedent. She also provided details about Espada's appearance and demeanor after the shooting which suggested that he could have been the shooter.

The PCRA court held an evidentiary hearing on May 12, 2015. At this hearing, Ms. Tyson testified that within twenty-four hours of the murder, Espada called her and confessed to the murder. Ms. Tyson also spoke with Espada in person and described him as a “hot mess” and that “he cut his hair and he just looked like he was up all night crying and stuff and he was like shaken up.” According to Ms. Tyson, Espada killed the decedent because of his prior assault on Ms. Tyson. Ms. Tyson testified that she did not tell the police this because her children were in foster care and she was receiving threats on Facebook. She also stated that the police threatened her and that the reason she came forward was because she wanted to remove the stress she bore from withholding this information. On January 19, 2016, the PCRA court granted a new trial based on the defendant's after-discovered evidence claim. The court stated that Ms. Tyson’s testimony satisfied all four factors (as discussed later) which a petitioner must meet in order to obtain a new trial based on after-discovered evidence. However, the PCRA court did not specifically address the credibility of Ms. Tyson; meaning it made no finding as to whether or not it found her testimony to be truthful.

The Commonwealth appealed. The Superior Court reversed the PCRA court. It held that Ms. Tyson’s testimony was merely corroborative and cumulative of the evidence presented at trial. The Superior Court further held that this testimony “goes to the very heart of the defense’s theory at trial” and faulted the PCRA court for accepting Ms. Tyson’s testimony “with no apparent corroboration.” It is important to remember that there was already testimony introduced at trial that Espada admitted to committing the murder. The defendant then filed an appeal to the Pennsylvania Supreme Court.

What is The After-Discovered Evidence Prong of the PCRA Statute?

The law on after-discovered evidence has been around for almost two centuries. Pennsylvania courts will allow a defendant to receive a new trial if they present evidence that meets four requirements: 1) the evidence could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; 2) the evidence is not merely corroborative or cumulative; 3) the evidence will not be used solely to impeach the credibility of a witness; and 4) the evidence would likely result in a different verdict if a new trial were granted. This is a conjunctive test and a petitioner must satisfy each of these elements by the preponderance of the evidence standard. Additionally, there are timing issues. For example, a petitioner cannot file a PCRA petition while an appeal is pending, and the petition must be filed within one year of the petitioner's sentence becoming final or within sixty days of the discovery of the evidence if the petitioner is outside of that initial one year window. Further, the petition must still be serving the sentence in order to file a PCRA Petition. As shown by the elements, a petitioner can have an uphill battle in satisfying all four elements. The reason why it can be difficult to succeed on this motion is that the courts have articulated a public policy that seeks to limit continued litigation.

What is Merely Corroborative and Cumulative Evidence?

The Supreme Court accepted the appeal and ruled that the evidence was not necessarily corroborative or cumulative because it may have been evidence of a higher quality than the similar evidence which had been introduced at trial. However, because the trial judge did not specifically find that he or she believed the testimony, the Court remanded the case for a credibility determination.

In its decision, the Pennsylvania Supreme Court noted that in its After-Discovered Evidence jurisprudence the Court never precisely defined what is “merely corroborative or cumulative” evidence. Accordingly, the Court looked to other jurisdictions for guidance. Specifically, the Court analyzed decisions from both New York and Georgia. In those states, the appellate courts analyzed the grade or the character of the evidence that was newly discovered. The Pennsylvania Supreme Court found these positions persuasive and adopted them. Specifically, the Court held that “[i]f the new evidence is of a different and ‘higher’ grade or character, though upon the same point, or of the same grade or character on a different point, it is not ‘merely’ corroborative or cumulative, and may support the grant of a new trial based on after-discovered evidence.”

When applying this new rule to the instant case, the Supreme Court held that Ms. Tyson’s testimony, though technically cumulative, was a much higher grade and character, if believed, than what was presented at trial. Ms. Tyson was the mother of Espada’s children and thus her testimony would arguably be much more persuasive than what was presented at trial. Additionally, she would be able to testify about his physical appearance in the immediate after hours of this shooting, which could also be more persuasive than what was presented at trial.

Unfortunately for the defendant, despite this favorable ruling, he is not guaranteed a new trial. As stated above, the PCRA court did not make a clear credibility determination of Ms. Tyson in its opinion, which is necessary to rule on an after-discovered evidence petition. Therefore, the Pennsylvania Supreme Court chose not to grant the defendant's petition. Instead, it remanded the case for the PCRA court to make the credibility determination.

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