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    Filing a PCRA Petition Based on Recantation Testimony

    Question: My son was convicted for possession with intent to deliver drugs, and we want to file a PCRA petition because a witness for the prosecution at trial recanted his testimony. What are our chances?

    Answer: It is difficult to answer your question without knowing all of the facts and circumstances surrounding your son’s trial. Further, it is difficult to conduct a proper case assessment without looking at the trial record. However, I will answer your question in general terms and based on some assumptions.

    PCRA Petition – Newly Discovered Evidence

    After a criminal trial in Philadelphia where a defendant is convicted of a crime, such as possession with intent to deliver, he may file a PCRA petition. However, there are limited grounds of appeal; one of them is newly discovered evidence. A witness recanting his/her testimony at trial may be considered newly discovered evidence.

    See Pennsylvania Post Conviction Relief Act Petition – Recantation Testimony

    In order for a court to grant a PCRA petition based on newly discovered evidence in the form of recantation testimony, a defendant needs to prove that the evidence was:

    1. not available at trial and could not have been obtained prior to trial through reasonable diligence,

    2. the evidence is not cumulative (no other corroborating evidence),

    3. if the evidence was available, the outcome would have been different, i.e., no conviction.

    I don’t know how many witnesses testified against your son at trial; therefore, I am going to answer your question based on 2 scenarios.

    Scenario 1: Only 1 Witness and Little Evidence Connecting Defendant to Crime

    Let’s assume the prosecution’s only evidence against your son at trial was the 1 eyewitness testimony placing your son at the scene of the crime. Now, the eyewitness is recanting his testimony stating that he did not see your son. The court may grant your son’s PCRA petition if it finds the recantation testimony credible and the standard governing newly discovered evidence provided above is met. In other words, the testimony was not available at trial, and there was no other evidence or eyewitness testimony against your son other than this eyewitness testimony. In addition, if the witness testified at trial that he did not see your son at the crime scene, then the outcome of the trial would have been different.

    Scenario 2: Multiple Witnesses

    If the prosecution had multiple witnesses who testified that they saw your son committing the crime, the fact that 1 eyewitness recants his testimony is unlikely to qualify as newly discovered evidence. The reason is that there was other corroborating testimony that put your son at the crime scene. Even if at trial this person testified that he did not see your son, but 3 other witnesses said they saw your son, it may have not changed the outcome of the trial. Therefore, in this scenario, the court is unlikely to grant your son’s PCRA petition.

    Please contact our office to discuss your son’s case in more detail. As you can see, we need more information to properly assess whether he can file a PCRA. (215) 564-0644

    Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.


    David S. Nenner

    "Top Rated Criminal Defense Lawyer"

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