Com. v. Bormack

• Decision Date: 16 June 2003
• Citation: 827 A.2d 503
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Matthew BORMACK, Appellant.
• Court: Pennsylvania Superior Court

827 A.2d 503

COMMONWEALTH of Pennsylvania, Appellee, v. Matthew BORMACK, Appellant.

Superior Court of Pennsylvania.

Argued December 4, 2002.

Filed June 16, 2003.

Burton A. Rose, Philadelphia, for appellant.

Michelle P. Hutton, Asst. Dist. Atty., Philadelphia, for Com., appellee. Before: JOYCE, BENDER and BECK, JJ.

BECK, J.

¶ 1 In this appeal we consider, inter alia, the admission of expert testimony regarding human memory and perception in the context of eyewitness identification. After careful analysis of the issues and the relevant case law, we affirm.

¶ 2 The evidence presented by the Commonwealth at trial revealed the following. Seventeen-year-old John Gallagher was an assistant manager at Eckerd Drugs in Drexel Hill, Delaware County. In August 2000 he was working at the store and engaged in emptying the cash register and an extra cash drop box. He walked from the front of the store to the back carrying the cash register drawer and locked the drawer in the office. He then returned to the front of the store to retrieve the money in the drop box. As he approached the register, he saw his co-worker Anna Vagnozzi and an apparent customer, whom he later identified as appellant.

¶ 3 Gallagher removed the cash from the drop box in view of Vagnozzi and appellant and started back to the office in the rear of the store. As Gallagher walked down the aisle toward the office, he heard running footsteps in the aisle next to him. When he reached the end of the aisle he was met by appellant, the customer he had seen at the front register. Appellant stood about one foot from Gallagher and had a kitchen knife in his hand. He instructed Gallagher to "drop it" and Gallagher handed him the money. Appellant then told Gallagher to "just stand there" to which Gallagher replied "take the money, just please don't hurt me."

¶ 4 Appellant took the money and fled from the store. Gallagher told Vagnozzi and the pharmacist on duty that he had been robbed, then called police. Gallagher described appellant as a white male, about 5' 10" tall, and wearing a tan baseball cap, a T-shirt, shorts and black shoes. Police described Gallagher's state as "shaken, [but] pretty much together." Approximately $790.00 was taken in the robbery.

¶ 5 Vagnozzi lent some corroboration to Gallagher's version of events. She explained that a white male customer was present at the register at the time Gallagher retrieved the money. When Gallagher walked away, the customer, whom Vagnozzi described as wearing a red short sleeved T-shirt, shorts and a cap, told her that he had forgotten something and left the register. Vagnozzi then heard some commotion in the aisle and thought perhaps it was Gallagher interacting with a friend. Thereafter, a person ran past her and out of the store. Vagnozzi could not identify appellant nor could she be certain that the person who ran past her was the customer she had seen earlier.

¶ 6 About three months later, Gallagher saw appellant exiting the drug store and promptly called police to report the sighting. Although he could not recall what appellant had been wearing, he noticed that appellant had facial hair (the start of sideburns and a moustache) that he had not had on the date of the robbery. Despite this change in appearance, appellant nonetheless was certain that the individual he saw on that date was the robber.

¶ 7 Three days later, Gallagher again saw appellant. This time appellant was washing his car on a street not far from the drug store; he did not have any facial hair. Again Gallagher called police and was able to show them the car appellant had been washing. Police asked Gallagher to view a photo array, from which Gallagher identified appellant. At a subsequent line-up, Gallagher once more identified appellant as the perpetrator. Finally, at trial, Gallagher made a positive identification of appellant for the jury.

¶ 8 Appellant offered an alibi witness at trial, Jerry McKenna, who lives nearly an hour away from the drug store. McKenna testified that appellant arrived at McKenna's house at 4:30 or 5:00 PM on the day of the robbery and stayed there until 11:30 or midnight. The robbery occurred at 5:30 PM.

¶ 9 McKenna's wife also appeared on appellant's behalf. She testified that when she left for her bowling league game at 5:30 PM, appellant was at her home and when she returned at 8:30 PM he was still there. McKenna and his wife offered inconsistent testimony about several peripheral facts, such as when the couple began meeting with appellant on bowling nights and whether McKenna drank alcohol at these get-togethers.

¶ 10 The jury returned guilty verdicts on the charges of robbery and theft by unlawful taking. Appellant was sentenced and, following the denial of post-sentence motions, he filed this timely appeal.

¶ 11 Appellant's first issue on appeal is his claim that the trial court erred in denying him a new trial based on after-discovered evidence. On June 18, 2001, approximately ten months after the robbery in this case, and ten days after appellant was convicted, Gallagher signed a statement for Eckerd supervisors. In the statement, Gallagher admitted that in the previous six weeks he had taken money from the cash register when ringing up customers and had taken sodas and candy bars without paying for them. Gallagher admitted to taking approximately $165.00 in cash and merchandise over the six-week period.¹

¶ 12 Appellant presented Gallagher's written statement at post-sentence motions and requested that a new trial be granted based on after-discovered evidence. The evidence, appellant claimed, would have been relevant to "suggest that John Gallagher himself might have stolen the money." Appellant's Brief at 8.

¶ 13 The grant of a new trial on the basis of after-discovered evidence is proper when the following conditions are met:

1. the evidence has been discovered after trial and could not have been obtained prior to the conclusion of trial by the exercise of due diligence;

2. the evidence is not merely corroborative or cumulative;

3. the evidence will not be used solely for impeachment purposes; and

4. the evidence is of such a nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Cobbs, 759 A.2d 932, 934 (Pa.Super.2000) (relying on Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978)).

¶ 14 The trial court denied appellant a new trial because it found that the evidence proffered would be used solely to impeach Gallagher. We agree. Although appellant attempts to characterize the evidence as useful for purposes other than impeachment, his arguments make it clear that the evidence would be utilized solely for impeachment. He argues that the evidence could have established that Gallagher "falsified his account of the incident," and "may not have been truthful;" appellant claims that the evidence would have "apprised [the jurors of Gallagher's] character... in order for them to properly assess the reliability and motive behind his testimony." Appellant's Brief at 9-12. Appellant adopts the statement made by trial counsel at the post-sentence hearing that the evidence "would have changed the Boy Scout into a criminal." Id. at 9.

¶ 15 All of these arguments establish that the value of the evidence was as impeachment evidence alone. Appellant has not suggested that the evidence would have prompted him to call other witnesses or offer other evidence, only that the evidence "would have allowed the jury to see Mr. Gallagher in a different light." Appellant's Reply Brief at 3. As such, the evidence is insufficient to satisfy the standard for a new trial. See Valderrama, supra.

¶ 16 In an effort to establish that the evidence does satisfy the applicable standard, appellant relies on Cobbs, supra, and Commonwealth v. Fiore, 780 A.2d 704 (Pa.Super.2001). In Fiore, the defense acquired a co-conspirator's statement after trial that exonerated the appellant. In Cobbs, police witnesses for the prosecution gave depositions in a civil case (after the criminal trial) that contradicted their trial testimony. In both instances, a new trial was granted.

¶ 17 The evidence here is unlike that in Cobbs and Fiore. It neither contradicts Gallagher's trial testimony nor does it exonerate appellant. While the evidence certainly establishes that Gallagher stole money, candy and soda from his employer some ten months after the robbery and during the period of time that the trial was taking place, it does not satisfy the standard for the grant of a new trial because its use is limited to impeachment of Gallagher. The trial court did not err in denying the request for a new trial on this basis.

¶ 18 Appellant also asked the trial court to grant him a new trial based on trial counsel's alleged ineffectiveness in failing to request a jury instruction pursuant to Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). To establish ineffectiveness, appellant must present a claim of arguable merit, assert a lack of strategy on counsel's part and establish that, but for counsel's act or omission, the verdict would have been different. Commonwealth v. Scott, 561 Pa. 617, 752 A.2d 871 (2000).²

¶ 19 A Kloiber instruction warns jurors that they should receive evidence of eyewitness identification with caution where:

the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify [the] defendant on one or more prior occasions.

Id. at 424, 106 A.2d at 826-27.

¶ 20 At the post-sentence hearing on this ineffectiveness claim, trial counsel testified that he did not believe a Kloiber instruction was warranted in this case. Counsel noted that Gallagher's initial observation of appellant was "in the store in the middle of the day with the lights on." Thereafter, Gallagher made additional identifications of appellant and...