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    PA PCRA Petitions – When Evidence is Considered Newly Discovered Evidence

    By a Philadelphia Criminal Appeals and PCRA Petitions Lawyer

    After criminal convictions in Philadelphia, defendants may file appeals.  There are different types of appeals, and this article will only discuss Post Conviction Relief Act (PCRA) petitions.  For a discussion on direct appeals, see Criminal Appeals in Philadelphia Criminal Cases.

    PCRA Petition Grounds for Appeal – Newly Discovered Evidence

    Per the PCRA, there are different grounds for appeal Philadelphia criminal defendants may file after convictions for drugs crimes, murder crimes and other crimes.  PCRA petitions may include one ground of appeal or many grounds of appeal.

    The ground for appeal we will focus on is newly discovered evidence. Section § 9543 (a)(2)(vi) of the Pennsylvania Post Conviction Relief Act provides that post conviction relief will be granted if the defendant proves “the unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.”

    What does that mean?  Essentially there are 3 things defendant must establish, and they are:

    1. the unavailability of the evidence at the time of trial,
    2. the evidence is exculpatory in nature, and
    3. the outcome of the trial would have been different, i.e., the defendant would not have been convicted.

    PCRA Petition Hypothtical

    Consider the following hypothetical:

    An individual was arrested and charged for murder in Philadelphia.  There were 3 witnesses at the scene of the crime.  Two of the witnesses are friends with the victim and do not like the defendant.  In addition, they also have extensive rap sheets.  The third witness was friendly with both the defendant and victim, and has never had any problems with the law.  The defendant did not deny he was at the scene, but maintained that he did not shoot the victim and that his friend can attest to that.

    After the shooting, police obtained eyewitness statements from the victim’s friends who both said they saw the defendant shoot the victim.  The police could not find the third witness.  A public defender was assigned to the defendant’s case.  At trial, both of the witnesses testified that they saw the defendant shoot the victim, and the defendant was convicted of murder by the jury.

    After the trial, the third witness resurfaced and the defendant filed a PCRA petition based on the ground of newly discovered evidence.

    When Newly Discovered Evidence is Not Admitted

    Prior to trial, defense counsel told defendant that they could not locate the third witness.  The defendant told his lawyer that his friend was afraid that the victim’s friends would come after him and was probably hiding at a relative’s home out of state.  The defendant gave his lawyer the name of the relative and the city where the relative lived.  However, defense counsel did not investigate this lead unbeknownst to the defendant.

    In such a case, the defendant’s PCRA petition would be denied because even though the witness was not physically at trial, he was in fact available.  The defense lawyer just did not take reasonable steps to track down the witness.  In order for the witness to be considered unavailable, defendant has to take reasonable steps to try to find the witness. Therefore, the defendant failed to prove the first prong.

    However, because the defendant did not know that his lawyer didn’t try to track down the witness, he may file a PCRA petition based on the ground that his counsel was ineffective.  For a discussion of ineffective of counsel, see Ineffective Assistance of Counsel Claims.

    When Newly Discovered Evidence is Admitted

    Using the same example, let’s say the lawyer did in fact hire an investigator and tried to track down every lead they had as to where the witness could be, but could not find the witness.  In such a case, the first prong is satisfied because the witness was in fact unavailable after reasonable efforts to try and find him.

    The second and third prongs in this situation are also satisfied.  The newly discovered evidence is exculpatory because if the witness was available at the time of trial, his testimony would tend to establish the defendant’s innocence of the crimes charged.

    The outcome of the trial would have been different if the witness was at trial.  His testimony may have been more credible because he was friendly with both the victim and defendant.  He was not biased, and had never had any run-ins with the law.  There is a strong argument that his testimony would have established reasonable doubt that the defendant was the shooter.

    Help From an Experienced Criminal Appeals Lawyer in Philadelphia

    David S. Nenner has been a Philadelphia criminal defense lawyer for over 25 years.  He is an experienced trial lawyer and was named a “Top Rated Criminal Defense Attorney in Philadelphia” by Super Lawyers.  Mr. Nenner always offers FREE consultations.  215.564.0644

    David S. Nenner

    "Top Rated Criminal Defense Lawyer"

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