There are several grounds of appeal defendants can present in their Pennsylvania Post Conviction Relief Act (PCRA) petitions after being convicted at trial. One of those grounds is newly discovered evidence.
Newly discovered evidence can consist of various things, and one of them is recantation testimony of a witness. Recantation testimony is a statement of a witness who changes key elements of their original testimony.
As we discussed in previous PCRA articles relating to newly discovered evidence, in order for a court to grant a defendant’s PCRA petition, the defendant must prove:
1. the evidence was unavailable during trial,
2. the evidence was exculpatory in nature, and
3. the outcome of the trial would have been different if the evidence was available.
In order for recantation testimony to qualify as newly discovered evidence, a defendant must establish the above 3 things. In addition, the court must also find that the recantation testimony is credible.
It is well accepted that recantation testimony is unreliable, especially when it involves an admission of perjury. The Pennsylvania Supreme Court has held that in order for relief to be granted based on newly discovered evidence in the form of recantation testimony, the defendant must establish that:
(1) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence;
(2) the evidence is not cumulative;
(3) it is not being used solely to impeach credibility; and
(4) it would likely compel a different verdict. Further, the proposed new evidence must be producible and admissible.
See Commonwealth v. Smith (Pa. 2011).
In Commonwealth v. McCracken, the court granted the defendant’s PCRA petition and ordered a new trial. In this case the defendant was convicted of murder in the second degree, two counts of robbery and one count of criminal conspiracy after a robbery at a deli.
The defendant allegedly robbed a deli and shot a customer during the robbery. Other than the Commonwealth’s star witness, who testified that he saw the defendant enter and leave the deli, there was little evidence connecting the defendant to the crime. Years later, the witness recanted his testimony. He stated that he did not tell the truth at trial and did not know who entered and left the deli. He further stated that he understood he could face perjury prosecution.
The court found that the recantation testimony met the standard governing newly discovered evidence. It was not available at trial, it was not cumulative, and was likely to have resulted in a different verdict because of the limited evidence connecting defendant to the crime. Further, the court found the witness recantation testimony credible.
Filing a PCRA Petition in Pennsylvania
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