Com. v. McCracken

• Decision Date: 19 May 1995
• Citation: 659 A.2d 541,540 Pa. 541
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Terrence McCRACKEN, Appellant.
• Court: Pennsylvania Supreme Court

Page 541

659 A.2d 541

540 Pa. 541

COMMONWEALTH of Pennsylvania, Appellee, v. Terrence McCRACKEN, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 18, 1994.

Decided May 19, 1995.

[540 Pa. 543] John G. McDougall, for T. McCracken.

William H. Ryan, Jr., Dennis C. McAndrews, for Com.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

NIX, Chief Justice.

Appellant, Terrence McCracken, appeals from the Order of the Superior Court which reversed the trial court's grant of a new trial based on after-discovered evidence. Because we find that the trial court did not err in granting Appellant's motion, we reverse the Order of the Superior Court and remand for a new trial.

On October 25, 1983, following a trial by jury, Appellant was found guilty of murder of the second degree, ¹ two counts of robbery, ² and one count of criminal conspiracy. ³ Appellant filed post-verdict motions seeking inter alia a new trial based on after-discovered evidence. The trial court granted Appellant's motion. The Superior Court reversed because it concluded that the new evidence offered by Appellant was not of such a nature that it would likely compel a different result. Commonwealth v. McCracken, 373 Pa.Super. 90, 540 A.2d 537 (1988). This Court affirmed by per curiam Order. Commonwealth v. McCracken, 524 Pa. 332, 572 A.2d 2 (1990).

In the present appeal, Appellant has again sought relief on the basis of after-discovered evidence. At issue in this case is the recantation of Commonwealth witness Michael Aldridge. The facts relevant to the instant appeal have been concisely set forth by the trial court:

[A] man entered Kelly's Deli with a cover over his face and armed with a handgun. The man forced the owner, her daughter, and two customers into a walk-in refrigerator. Thereafter, three customers came in and the man forced the three of them at gunpoint to the rear room of the Deli. A fourth customer, Charles Johnston, came in and was shot. He died as a result of the sho[oting]. The man, after taking money from the cash register, left the Deli. As he was leaving the Deli he was observed by two customers who were about to enter the Deli. None of the people in the Deli or about to enter the Deli were able to identify [Appellant] as the man who committed the robbery and shooting. All of them gave descriptions of the man and what he was wearing.

About an hour or so after the robbery and shooting Officer James Clifton saw [Appellant] standing in the street. The clothes that [Appellant] was wearing, except his hat, met the description of that given to police by the witnesses and [Appellant] also met the description. The hat [Appellant] was wearing when Officer Clifton saw him had a brim. All witnesses had indicated that the man who committed the crimes wore a dark knit hat.

[Appellant] agreed to the performance of a gunshot residue test which was performed. Also, found in [Appellant]'s home, among other things, was a dark knit cap.

At the trial the person who performed the gunshot residue test testified that in his opinion there was gunshot residue on [Appellant]'s left hand.

One witness, Michael Aldridge, was the only witness who identified [Appellant]. He testified that he saw [Appellant] enter and leave the Deli. Aldridge has known [Appellant] for years and had gone to school with him. When questioned shortly after the incident he said he did not recognize the person he saw enter and leave the store.

On March 21, 1983 (three days after the incident) Aldridge gave another statement to the police. In that statement he stated that [Appellant] was the person that he saw enter and leave the Deli.

On April 7, 1983 (about three weeks after the Kelly's Deli incident) John Robert Turcotte, Jr. and William V. Verdekal were arrested in the Borough of Clifton Heights, Delaware County, Pennsylvania during the commission of a robbery. Turcotte had a handgun and tests on the handgun indicated that the bullet that killed Charles Johnston had been fired from the handgun that was in Turcotte's possession.

The Commonwealth attempted to connect [Appellant] with Turcotte and Verdekal by testimony that [Appellant] was a helper of Turcotte's in Verdekal's furniture delivery operation just before the Christmas holidays.

The Commonwealth charged Defendants Verdekal and Turcotte in the Kelly's Deli case. The cases were severed for trial. Turcotte would fit the description that was given by witnesses of the man who committed the robbery and shooting at Kelly's Deli.

[Appellant's] defense was alibi and that Turcotte committed the crime. The explanation of the residue found on his hand was that he had been helping a friend work on an automobile. Turcotte had been charged with other robberies and [Appellant] presented some witnesses in those cases to show modus operandi and to show that the handgun had been in Turcotte's possession for some time.

Commonwealth v. McCracken, Nos. 1584 March 1983; 2369 May 1983, slip op. at 3-6 (C.P. Delaware County Apr. 13, 1992). Following a trial by jury, Appellant was found guilty of murder of the second degree, two counts of robbery, and one count of criminal conspiracy. The trial court reasoned that because the victims' descriptions of the perpetrator fit both Turcotte and Appellant, and that Turcotte had the murder weapon in his possession, the jury must have placed considerable weight on Aldridge's identification testimony. Id. at 10. The history of Aldridge's involvement in this case has been aptly summarized by the trial court:

Aldridge when first questioned (March 18, 1983) by the police stated that he could not identify the person he saw enter and leave Kelly's Deli. When questioned the second time (on March 21, 1983) he said that he could identify the person he saw. He stated that the person was [Appellant]. In that statement he indicated that he was less than a block away from Kelly's Deli when he saw the perpetrator enter and leave the Deli and that the person was [Appellant]. His testimony at the Preliminary Hearing conformed to the March 21, 1983 statement he gave to the police. On April 8, 1983 he gave another statement to the police. In that statement he indicated that he was walking toward McDade Boulevard approaching its intersection with Juliana Terrace when he saw [Appellant] walking on McDade Boulevard in the direction of Kelly's Deli. He stated that [Appellant] was in front of the Clam Tavern at the time. He stated that [Appellant] looked directly at him (Aldridge) and waved to him.

Aldridge in his trial testimony testified that he made the first statement to the detectives because he did not want to get involved. In his trial testimony he testified that in his second statement he indicated that he was closer to Kelly's Deli than the intersection of Juliana and McDade Boulevard so that his identification of [Appellant] would be more believable.

....

In the Spring of 1990 Aldridge was serving time in a New Jersey Prison. He indicated he wanted to recant the testimony he had given in the McCracken case. Mr. McDougall [trial counsel] was contacted and on March 15, 1990, Mr. McDougall went to Northern State Prison, Newark, New Jersey, to talk with Aldridge. McDougall took a Court Stenographer with him. A statement (question and answer) was taken. In the statement Aldridge stated that he was not telling the truth at [Appellant]'s trial when he testified that he saw [Appellant] enter and leave Kelly's Deli. [Appellant], through McDougall, petitioned [the trial court] to grant a new trial on the basis of Aldridge's recantation....

At the recantation hearing, inter alia, Aldridge testified that he was not telling the truth when he said [Appellant] was the person he saw entering and leaving Kelly's Deli. He testified that he did not know who it was he saw entering and leaving the Deli. He testified that no one pressured or induced him to make the recantation statement to Mr. McDougall or to appear in Court at the recantation hearing. He testified that he was at the hearing because he wanted to clear his conscience and that he thinks [sic] [Appellant] should get a "fair day in Court". He testified that he was aware that he could face a perjury prosecution. He testified that detectives kept repeating [Appellant]'s name to him and suggesting [Appellant] was the perpetrator to the extent that he began to believe [that Appellant] was the perpetrator. He also testified that his female probation officer came to the detectives' office while he was there and that he was immediately taken off of probation. He admitted to being beaten, and admitted to threats to himself and to his family. He admitted to writing letters to New Jersey prison authorities to the effect that he feared for his safety in prison because he testified in [Appellant]'s case. In those letters he mentioned members of the Warlocks' gang being in prison and the beating by one Jerome Ambercelli who apparently was his cell mate. In the letters he was asking for protective custody and transfers to other prisons.

Id. at 9-12 (emphasis omitted).

The Commonwealth presented several witnesses at Aldridge's recantation hearing to support its contention that Aldridge had been threatened to recant. The trial court found all these witnesses to be credible; however, it observed that there was no evidence that Appellant had any part in the beatings of Aldridge or the threats to him and his family. Id. at 14.

The trial court also determined that the other evidence of threats and intimidation directed toward Aldridge had reasonable alternative explanations. It concluded that Aldridge's letters to New Jersey prison authorities were written not only out of fear, but also out of a desire to be transferred to a prison facility closer to Aldridge's home. Id. at 19. The court also found that Aldridge's beating in prison was solely the result of his reputation as a snitch and unrelated to his testimony in the...