Com. v. Galloway

• Citation: 640 A.2d 454,433 Pa.Super. 222
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Cornell GALLOWAY, Appellant.
• Decision Date: 12 April 1994
• Court: Superior Court of Pennsylvania

Page 454

640 A.2d 454

433 Pa.Super. 222

COMMONWEALTH of Pennsylvania, Appellee, v. Cornell GALLOWAY, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 10, 1993.

Filed April 12, 1994.

Mitchell A. Sommers, Ephrata, for appellant.

Joseph C. Madenspacher, Dist. Atty., Lancaster, for Com., appellee.

Before WIEAND, OLSZEWSKI and POPOVICH, JJ.

POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Lancaster County which dismissed appellant's petition for post-conviction relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541 et seq. On March 29, 1977, appellant was convicted of murder in the first degree in the slaying of Daniel Gebhard and murder in the first degree as a principal in the second degree in the death of Barry Kimmet. We affirm appellant's conviction in the death of Barry Kimmet, but we reverse his conviction for the murder of Daniel Gebhard and remand for a new trial.

Herein, appellant contends that he is entitled to a new trial. He argues that the lower court erred in refusing to apply retroactively Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), which bars the admission of hypnotically-induced testimony. See, 42 Pa.C.S.A. § 9543(a)(2)(i). Appellant also contends that he is entitled to post-conviction relief because he was not informed prior to trial that the Commonwealth's key-witness was hypnotized and such information would have affected the outcome of the trial. See, 42 Pa.C.S.A. § 9543(a)(2)(vi). Finally, appellant argues that the Commonwealth violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires the Commonwealth to disclose all material, exculpatory evidence, since the Commonwealth failed to disclose that its key witness' recollection was hypnotically-refreshed prior to trial. See, 42 Pa.C.S.A. § 9543(a)(2)(i).

The record reveals that on August 2, 1969, Daniel Gebhard and Barry Kimmet were slain in related drive-by shootings. Those shootings were the result of racial unrest in the city of Lancaster. ¹ Appellant and numerous other black persons traveled in at least two vehicles to the area of Bleacher's Cafe, where certain white persons who allegedly threatened other black persons, were said to be waiting to fight. At trial, appellant admitted to being in the one of the automobiles when the men were shot. However, he denied having possessed or shot a weapon during the incidents. Nevertheless, appellant was convicted of shooting Daniel Gebhard in the head with a high-powered rifle. He was also convicted of aiding and abetting his brother, Lorenzo Galloway, who shot Barry Kimmet in the head with a high-powered rifle.

The Commonwealth presented the testimony of Dorothy Easley who was driving one of the two vehicles which participated in the shootings. She testified that she saw appellant lean out of the front passenger window of the other vehicle with a rifle in his hand, take aim and shoot. She also testified that afterwards, she heard appellant say to his brother Lorenzo that "I got one, and you got the other."

It is important to note that the shootings took place almost eight years prior to the trial. That fact is significant because appellant only recently became aware that Dorothy Easley was hypnotized prior to trial to refresh her recollection of the long-past event. The Commonwealth acknowledges that Ms. Easley was hypnotized approximately six months prior to trial by John B. Shenk. However, the Commonwealth avers it possesses no other information concerning the event. It is undisputed that neither appellant nor his counsel was informed of the hypnosis prior to trial. ²

First, we will address appellant's contention that he is entitled to a new trial because the Commonwealth introduced the testimony of Dorothy Easley whose recollection of the events of August 2, 1969, were hypnotically refreshed prior to trial. Appellant correctly notes that in Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), our Supreme Court held that a witness' hypnotically-refreshed testimony was properly excluded where the witness had no recollection of the facts which would have been the subject of the testimony prior to the hypnosis. Our Supreme Court again rejected the use of hypnotically-induced testimony in Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984). See also, Commonwealth v. DiNicola, 348 Pa.Super. 405, 502 A.2d 606 (1985), cert. denied, 484 U.S. 1028, 108 S.Ct. 755, 98 L.Ed.2d 768 (1988); Commonwealth v. Reed, 400 Pa.Super. 207, 583 A.2d 459 (1990), allocatur denied, 528 Pa. 629, 598 A.2d 282 (1991); Commonwealth v. McCabe, 303 Pa.Super. 245, 449 A.2d 670 (1982). ³

Despite the fact that hypnotically-refreshed testimony is generally not admissible, appellant is not entitled to post-conviction relief on the basis of the rule of evidence set forth in Nazarovitch, supra. "[A] new rule of law to which we give retroactive effect, will not be applied to any case on collateral review unless that decision was handed down during the pendency of an appellant's direct appeal and the issue was properly preserved there, or, as here, is non-waivable." Commonwealth v. Gillespie, 512 Pa. 349, 355, 516 A.2d 1180, 1183 (1986). See also, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (setting forth the federal rule for retroactive application of new law in collateral proceedings); Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989) (applying Gillespie); Commonwealth v. Riggins, 374 Pa.Super. 243, 255, 542 A.2d 1004, 1010 (1988), allocatur denied, 522 Pa. 583, 559 A.2d 527 (1989) (applying Gillespie and citing cases). Nazarovitch, supra, was decided by our Supreme Court on October 29, 1981, and appellant's conviction became final when our Supreme Court affirmed his judgment of sentence on September 24, 1981. See, Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981). Thus, appellant is not entitled to post-conviction collateral relief since his criminal judgment was final prior to the Supreme Court's decision to exclude hypnotically-influenced testimony from admission at trial. ⁴

Appellant also claims that he is entitled to a new trial because the recently-discovered evidence of Ms. Easley's hypnosis constituted "exculpatory evidence [unavailable at the time of trial] that has subsequently become available and that would have affected the outcome of the trial if it had been introduced." 42 Pa.C.S.A. § 9543(a)(2)(vi). To be entitled to a new trial on the basis of after discovered evidence, appellant must establish, "that the evidence was discovered after trial and could not have been obtained at trial by reasonable diligence, that it is not cumulative or of such a nature that it merely impeaches credibility, and that it would be likely to compel a different result." Commonwealth v. Conley, 232 Pa.Super. 432, 335 A.2d 721, 722 (1975) (applying identical language of the now-repealed Post Conviction Hearing Act). See also, Commonwealth v. Favinger, 358 Pa.Super. 245, 250, 516 A.2d 1386, 1389 (1986), allocatur denied, 516 Pa. 612, 531 A.2d 779 (1987). Since the evidence in question, i.e., that Ms. Easley was hypnotized six-months prior to trial, goes solely to the credibility of her testimony, appellant is not entitled to relief pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vi).

Despite our refusal to grant relief based on appellant's first two assertions of error, we nevertheless conclude that appellant has presented a meritorious claim that the Commonwealth impermissibly violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963), wherein the United States Supreme Court held: "[T]he suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution." ⁵ Appellant asserts that information concerning the hypnosis of Ms. Easley is the type of evidence which the Commonwealth was required to produce pursuant to Brady, supra, and we agree. ⁶

In Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, 108 (1972), the United States Supreme Court, quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217, 1220 (1959), clearly stated: "When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general [Brady] rule." Thus, at the time of appellant's trial, the Commonwealth was required to provide appellant with information in its possession which impacted upon the credibility of its witnesses. We are convinced that the evidence of Ms. Easley's hypnosis is clearly evidence affecting credibility. ⁷

However, to be entitled to a new trial under Brady, supra, and its progeny, the evidence affecting credibility must be material. See also, Giglio, supra; Agurs, supra; Commonwealth v. Wallace, 500 Pa. 270, 275-80, 455 A.2d 1187, 1190-1192 (1983); Commonwealth v. Rose, 483 Pa. 382, 393-97, 396 A.2d 1221, 1227-1229 (1979); Commonwealth v. Cain, 471 Pa. 140, 152, 369 A.2d 1234, 1240 (1977); Commonwealth v. Floyd, 259 Pa.Super. 552, 557-558, 393 A.2d 963, 966-967 (1978). In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the United States Supreme Court, after reviewing Brady, supra, and its progeny, concisely defined "materiality" as follows:

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. ⁸

Thus, we are required herein to determine whether there is a reasonable probability that, had the jury been permitted to weigh the testimony of Dorothy Easley in light of her hypnosis by the...