### J - S80017 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v. APRIL DEMANCHE Appellee No. 5 MDA 2016

Appeal from the PCRA Order Dated November 30 , 2015 In the Court of Common Pleas of York County Criminal Division at No: CP - 67 - CR - 0005999 - 2014 BEFORE: LAZARUS, STABILE, and RANSOM, JJ. MEMORANDUM BY STABILE, J.: FILED DECEMBER 30, 2016 The Commonwealth appeals from the November 30, 2015 order entered in the Court of Common Pleas of York County (“PCRA court”), which permitted Appellee April Demanche to withdraw her plea of nolo contendere and proceed t o trial based on a recantation claim pursuant to the Post Conviction Relief Act (“ PCRA ”), 42 Pa.C.S.A §§ 9541 - 46. Upon careful review, we affirm. The facts and procedural history underlying this case are undisputed. Briefly, on April 23, 2015, Appellee pled no contest to two counts of endangering the welfare of children under 18 Pa.C.S.A. § 4304(a)(1) and was sentenced to consecutive five - year terms of probation. On August 21, 2015, Appellee filed the instant PCRA petition, alleging that, between July 5, 2015, and July 15, 2015, she discovered that two minor victims had

### J - S80017 - 16

- 2 -

recanted their allegations of abuse against Appellee. 1 

### The PCRA court conducted a hearing, after which it granted Appellee PCRA relief based on after - discovered recantation evidence on November 30, 2015. 2 

### The Commonwealth timely appealed to this Court. Following the Commonwealth’s filing of a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion. On appeal, 3 

### the Commonwealth r aises three issues for our review:

____________________________________________ 1 

### Generally, a defendant who pleads guilty waives all defects and defenses except those concerning the jurisdiction of the court, the legality of the sentence, and the validity of the guilty plea. See Commonwealth v. Pantalion , 957 A.2d 1267, 1271 (Pa. Super. 2008). A nolo contendere plea is treated the same as a guilty plea. Commonwealth v. Leidig , 850 A.2d 743, 745 (Pa. Super. 2004), aff’d , 956 A.2d 399 (Pa. 2008). 2 

### In Commo nwealth v. Starr , 301 A.2d 592 (Pa. 1973), our Supreme Court determined that a court should allow the withdrawal of a guilty plea after sentencing to correct a manifest injustice to the defendant. Subsequently, the Court determined that any after - discover ed evidence which would justify a new trial would also satisfy the requirements of Starr. Commonwealth v. Peoples , 319 A.2d 679, 681 (Pa. 1974). Specifically, the Court stated that “any after
- discovered evidence which would justify a new trial would also entitle a defendant to withdraw his guilty plea.” Id. 3 

### We have explained: This Court examines PCRA appeals in the light most favorable to the prevailing party at the PCRA level. Our review is limited to the findings of the PCRA court and the evidence of record[.] Additionally, [w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. In this respect, we will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. However, we afford no deference to its legal conclusions. [W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. (Footnote Continued Next Page)

### J - S80017 - 16

- 3 -

I. Whether [Appellee] is ineligible for relief under the PCRA under Section 42 Pa.C.S.A. § 9543(a)(2)(iv) as the purported victim recantations could have been discovered by going to trial and examining the victims at tria l? [ 4 ] 

### II. Whether the lower court erred in granting [Appellee’s] PCRA petition to withdraw a no - contest Alford plea, [ 5 ] 

### based upon purported recantations of two of four juvenile victims? III. Whether [the] PCRA court erred in permitting [Appellee] to withdraw her no - contest plea where the plea consisted of two counts involving a consolidated claim of four victims where only two victims recanted? Commonwealth’s Brief at 4 (unnecessary capitalization omitted). After careful review of the record and the r elevant case law, we conclude that the PCRA court accurately and thoroughly addressed the merits of the Commonwealth’s claims. See PCRA Court Rule 1925(a) Opinion, 4/5/16, at 7 - 19. Accordingly, we affirm the PCRA court’s November

(Footnote Continued)
_______________________ 

### Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super .2014) (citations and quotation marks omitted), appeal denied , 101 A.3d 785 (Pa. 2014). 4 

### To obtain relief based upon newly - discovered evidence under the PCRA, a petitioner 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. Commonwealth. v. D 'Amato , 856 A.2d 806, 823 (Pa. 2004) (citation and quotation marks omitted). In fact, the PCRA provides relief where a petitioner can prove “[t]he 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.” 42 Pa.C.S.A. § 9543(a)(2)(vi). 5 

### North Carolina v. Alford , 400 U.S. 25 (1970). An Alford plea is a nolo contendere plea in which the defendant does not admit guilt but waives his trial and voluntarily, knowingly, and understandingly consents to the imposition of punishment by the trial court. Alford , 400 U.S. at 37.

### J - S80017 - 16

- 4 -

30, 2015 order. We furt her direct that a copy of the PCRA court’s April 5, 2016 Rule 1925(a) opinion be attached to any future filings in this case. Order affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/30/2016r - ~ \ I ~ I ( ' !
. • : 1 

# d ; . ~ :: l t/111 - · · · · ·· · + . ( - P'l -c r , i ::0 CJ .. ( I l
.

Octob er 17, 2014. On F ebruary 12, 20 J 5, the case was listed for trial in the March of 2015 and Corruption of Minors. Thereafter, the Appellee completed a Waiver of Arraignment on of Age, four counts of Unlawful Restraint, four counts of Endangering Welfare of Children, with Criminal So l icitation to Involuntary Deviate Sexual Intercourse-Less Than 13 Years By the filing of an [nform ation on September 29, 2014, the Appell e e w a s charged I. Procedural History Order. relevant ca s e Jaw, the Court now issues this Opinion in support of our November 30 , 2015 entered in this case on Novemb er 30 , 2015. Having consid ered all evidence, testimony, and Commonwealth of Pennsylvania appeals to the Superior Court of Pennsylvania the Order The Court received a Notice of Appeal, docketed on December 30, 2015, that the 

### w



## ...... OPINION IN SUPPORT OF ORDER PURSUANT TO RULE l925(a) OF THE

RULES OF APPELLATE PROCEDURE

Anthony J. Tambourine, Esquire Counsel for the Appel lee James E. Z arnkotowicz , Esquire Counsel for the Appellant ., ,. · - . . :; . ' ~ •· I ; ) I (.,') ~ 

## ... _., 

### : ~ '

. ) APRIL DEMANCHE,



### Def end ant/ Appellee COUNSEL OF RECORD: ,.... '

-· · ·- - - - ---- 

### - - - · - - - -- · - - --- - · ·· - ·- - - - -- - NO. CP-67-CR-0005999-2014



### v. COMMONWEALTH

Appellant IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CRIMINAL DIVISION 

### - - - - - -- - - - -- - -- -- - -- -· -- -· - -- - - - - -- -- ··--- · - - - ..

( - · · - ··---• ·· ~ • - -4H - h - ·· · - - - · • •• • ·--

· · 1 .: · I. ; . .

. 1 · ' : . . ' '

. , ·~ i_; · ; 1 · . : , ·. Circulated 11/30/2016 04:12 PM2 counts of Endangering the Welfare of Children involved consolidated claims involving four victims at trial. Third, and finally, the Appellant avers that the Appellee's pleas to the two granting relief because the recantations could have been discovered by examination of the the recantations of the two eldest child victims. Second, the Appellant believes we erred in erred in granting the Appellant's petition to withdraw her no-contest Alford plea following The Appellant appeals for the following reasons. First, the Appellant avers that we to Pennsylvania Rules of Appellate Procedure l 925(b). Appellant complied and filed their Statement of Matters Complained of on Appeal Pursuant I 92S(b ), of the Pennsylvania Rules of Appellate Procedure. On January 11, 2016, the 2016, we ordered the Appellant to file a statement of matters complained of pursuant to Ruic The Commonwealth filed a Notice of Appeal on December 30, 2015. On January 4 , new trial based upon the credible renunciations of the two eldest victims' testimony. reserved our decision, we issued an Order, on November 30, 2015, granting the Appellee a Appellee's petition for a new trial based upon the recantations of key witnesses. Having On October 27, 2015, a Post

- Conviction Relief Act Hearing was held to consider to close the case after five years of compliance. sentenced to consecutive terms of five years of probation on each count with the opportunity Endangering Welfare of Children under 18 Pa.C.S.A. § 4304(a)(l ). The Appellee was then her guilt, the Appellee entered an Alford plea on May 8, 2015 to two added counts of · -· · ·· ·- - · · · · · ---- · · · ······ ··· ~ - --··-- - - - ----·---

in · · /'

.. • . ·

_ , ! trial term. Believing the Commonwealth possessed sufficient evidence to convince a jury of

.. .. . · - -···· - - - · · · · - - ·· - ~ ·- ·· · ··· - ---·-·-·--- I ·· • . ' 1
. 1·- -- -- --- ~ - - - - - - - ·- · - ·· · - ·· - - - 3 S~ te stifi e d that his s iblings to ld him that the Appellee ti e d them up during the cour se te stified that h e was never h armed by touching a he ater in a house. 

### Id
. S4lillllafurther testified that nothing ever h appened to him involving his father's drop cl o ths. 

### Id., at 2 2
. And while S~ sai d th at he nev er told the sib l ings anything about being tied up, o n redire c t , o f calling the c hildren's mother and that sp anking wa s not utiliz e d. 

### Id., at 21. 

## S4•9 On cro ss - e x amination, S~tated th at punishme nt from the Appellee c onsisted h ad o nly recently re ve aled th e truth and th at the Appellee never hurt him or his siblin gs . Id. treated B9111111,in throwing a ring at B8tn Florida. Id., at 19. S e ···state<l th at he Children's Advocacy Ce nter (h ereinafter: CAC) interview er. Id., at 17. Specifi cally, S~told this Court that he lied ab o ut the Appelle e tying him and hi s siblings up and th at the Appellee ne v er fo rced the s uppo s ed victim ses face near 

## SJ R's priv ates.

J Id., at 17- 1 8. The imp etus for S~to lie w a s that he did not like how th e Appcll ce had famil y ' s b abysitter. Id. , at 16. A s to the accusations, S-stated that he had li e d to the SJ 

## ill testified that the Appellee was his brother B Al's girlfriend and the 15
. T e stimony , 10/27/15, at 10.) Without objection, S~ as found to be c o mp ete nt. Id., at II. 

### Facts At the October 27, 201 S PCRA Hearing , the eldest child accu s er, se-.r took the stand to recant his accusations. Se) 

## I was born January 24, 2004. (Notes of victim s and only two of the four victims rec anted.

. ( · i 1 ' • : · 

### . .. : 1

_ ,' · - -- - -- - ---- -· ·-· --- - - - - - - - - - - " " . . .,_ ·-- -· - - - · - - --- - -~--- · ·- - ·~~ - - - - - ~- - - - - - - - - --- - -- - .. - --- - - -- -- - · ~- - - - · · - .. 

### ~ - - - ---- ----- · - · · -- - -- - - . . . 

### , · , I;,4 SJ 

## £1 told him to and th at he had threatened Sp~ith violence ifhe did not go al o ng SPl!llllistated that the Appellee played games such as "cops and robbers" with the children and w ould tie them up with baby wipes. Id. 

### S~went on to say that this behavior wa s playful and not mean. Id., 

### at 42-43. S~as clear that the Appellee never hurt the knife to the children's throat s and about the Appellee tying them up. Id., 

### at 42. Rath er, untrue. Id., 

### at 40-41. He then went on to testify that h e lied about the Appellee holding a competent to testify. Id., 

### at 40. SJ 

# 8 told this Court that some of what he had stated in his CAC interview w a s being shoved into Sc 

### I( 's privates together. Id
. , 

### at 33. Following Se -·s recantation, S~ took the stand. 

# se wa s born September 22, 2005. ld., 

### at 35. No objection having been made, S~was found to be stated his belief that he and his brother 

### Sp unrelated accusations of 

### abuse. Id., 

### at 30-31. Finally, during 

### re - cross examination, SJ§ 

### confessed to his father that he had lied ab o ut the Appellee around the time that he lied about s tory told to his parents, the police, or the CAC interviewer was true. Id., 

### at 30. 

# st911111l accusations. Id., 

### at 26. Under questioning by the Court, S~said that h e n e ver told any of his siblings besides Sp
... o lie. Id., 

### at 28
. S~lso stated that not one bit of th e Se-admitted that he told his younger brother Sp
... to go along with the of a game. Id., 

### at 24-25.

; · • • 1 I:
. I • - - - · · -· · · - · · · · - · .. ··· - ~ ·- ··· -- ·--· · - -· · - ·· · - ·· · · · -· -·· - ·· --- ---~ ~- · · ~- - ----···- · · - ·------ - · -- ·- ····- - · - - · · · · ··· ·· · -· -- --- - ··--- - ·· -- - - · · -~ - -- · -·- - · · ·· - · ·· - - · ·· · - - --- · · - -- · - ~ - ~ · - ~ - -- • .n

## s

testified that at 

### some point after the Appellee had entered her plea, und er qu e stioning from Mr .• about the accusations, S~broke down and admitted that the accus ati o ns on to say th at 

### Sc? 

# g has hurt 

### him in the 

### past. 

### id., at 

### 5 6. Th e nex t PCRA He aring witness was R~ who is the father o f the
accusers. Mr. stlllast ated that 

## SeS 

## Si S p~ S a . and 

### S.made the allegations and that sae-and s.e,vould have been three at the time. Id., at 60. Mr . stll9then b ecau s e he did not want to g et hurt by S-who threatened him. 

### Id., at 

### 55
. He then went at 

### 5 2
. Sp
.. to say s omething about private areas rather than it being a j o intly-crafted s to ry . Id., Appell e e o f holdin g 

### a knife to the children's throats. ld. , at 

### 4 9. Under qu es tioning 

### by the C o urt, S~disagreed with 

# st4lllllltin that 

### Sp 

# I st ate d that 

### it w a s 

# sci I who told Appell e e did n o t s pank anyone, nor did she put anyone's face n e ar anyone else's privates
. children with time-out s an d through callin g their parents. 

### Id., at 46. 

### Sp. ] s aid that the ti e d to anything. Id. , at 45. Like S~ Sp~estified that the Appelle e punished the afore mentioned "cops and robbers" game) he wa s able to move around and that h e w a s not On cross-examination, Sp. stated that when tied up (seemingly durin g the .. . ... . . .. . - ·- · --- - -----·· --- - --- - -- · · -· · --- -~~- - -~--- - · -- - - -- - -- - -- -- - --· - ---- ··· · · - -- - - - · - - - - - - with the lie. id. Se

•, . . · : · · . .. 

## · .. i 

### , . . . . : · . n f : : • · · 1

### ·-- - 1

- - -- - - -· · ·-· · - - - -· - -- - · · · ·· · · - - -- - - - ---- - ------ - -- -- - - - - - - - · --·--- - --- 6 allegati o ns recounted by Mr. - K-added that 

# Se-
has accu se d ~ of abuse made accu sations to her were 

### Sdlc ••£•and 

### Sp- Id., at 73. In addition to th e false The purp orte d victims' mother, 

# Ktllll S
... testified that the only victim s who p ro mpting o f coun se lors. Id .• at 71. ~told this Court that the two female victims will not discuss the ir allegations e v en at the ~and the Appellee that occurred in Florida. 

### Id., at 66-67
. During the cour s e of his testimony, Mr. S~onfirmed Sp9,s ac c usation that accusations o f abu s e only surfac e d some five-to-six months after the incid e nt between was tidy , th e c hildre n w ere cared for, and the children made no complaints. Id., at 6 8. The again s t the Ap p ellee because, during the App e llee's time as the family's babysitter , the hou se The put ative v ictims' father testified that he was floored by the initial accusations his b e lief that S-0 

## I i s knowledgeable about s exual behavi o r. 

### id
. bad sexual relations with another patient, which turned out to b e fals e . 

### I d
. Mr. ~tated accused his grandmother of abuse
. 

### Id. Further, while hospitali z ed, Se~clai mc d to have fac ulty at S~s school, which were found to b e fal se. 

### Id., at 65. Sdcl£••also falsely accu s ed the Appellee, 

## seq l had made allegations of physical abuse at th e hands of exception of B_. h ad no cont act with the Appellee. 

### Id., at 64 and 66-67. Mr. sethen testified that prior to Se-s revelation that he had fal se ly were a lie. 

### Id., at 62-64
. From the time of the incident in Florida , the victims' 

### family, with the ' : ' f

# r------- -------·---, ~ - 7 The Appellee's petition made application for relief via the Post-Conviction Relief Act interest of

judicial economy, we do so. testimony at trial. These two matters are most expeditiously addressed as one and so, in the PCRA relief because she could have garnered the eldest victims' recantations by testing their Appellee's petition to withdraw her Alford plea and that the Appellee was ineligible for The Appellant's first two matters complained of are that we erred in granting the A. Recantation of Victims S.S. and S.S. III. Matters Complained of on Appeal because she was afraid to go to trial. Jd., at 83. 82. Despite her claim of innocence, the Appellee told this Cou11 that she entered a plea serious time in a state correctional facility followed by registration as a sex offender. Id., at worried how a jury would view the children's accusations and because she was looking at rags. Id., at 81-82. The Appellee testified that she plead nolo contendere because she was games with the children. Id., at 

### 81. Moreover, the kids did not play with 

### baby wipes or paint The final PCRA witness was the Appellee who stated that she really had not played Setlllll's hospital and school-related accusations. Jd., at 74. Finally, 

# Kiii testified that, following the conflagration between 

# I9 and the Appellee in Florida, S~"hated" the Appellee. Id. , at 75. Appellee were deemed unfounded and that surveillance video had definitively disproved . · ' 1 : ,---- - · - ·- - - · . · · ·· • ···· ... - ·· - · · -· · · -·- - - - - - - - · - · ·- - -·- · · · · · · --- · ·· - - -- - - · -- -- - -- - 

### - -·· - - - - - - I We are cognizant that our reliance upon an unreported Superior Court decision does not place us on the firmest of footings; however, our review of relevant case law leads us to believe that a PCRA petition to withdraw a pica based upon after-discovered evidence is an atypical event. Moreover, Commonwealth also cited this case at the PCRA Hearing. (Notes of Testimony, 10/27/15, at 4.) 8 rather than as a result of trial, '"[a]ny after-discovered evidence which would justify a new See Gajewski, supra, at 2. Though the Appellee's sentence resulted from a plea of guilty

(vi) 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. (2) That the conviction or sentence resulted from one or more of the following; (a) General rulc.-To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: 9543(a)(2)(vi), which states, in relevant part: Specifically , in the case 

### sub Judice, the Appellee sought relief under 42 Pa.C.S.A. § Commonwealth v. Gajewski, 2014 WL I 0979820, 2 (Pa. Super. Ct. 2014) ( quoting Commonwealth v. Crawley, 663 A.2d 676, 678 (Pa. 1995)). 1 from one or more of the enumerated errors or defects listed in 42 Pa.C.S.A. 

### § 9543(a)(2)." PCRA petitioner to establish by a preponderance of the evidence that his sentence resulted the two eldest child victims. "To be eligible for PCRA relief, the burden rests upon the (hereinafter: PCRA) and its thrust is based upon the recantation of the accusations made by2 A s a result of this precept, we believe we can reference cases that follow more common fact pattern s that are distinguishable from o ur own by virtue of their having gone to trial. In fact, the ever useful Standard Pennsylv ania Practice discu s ses the topic of re cantation exclu s ively through the lens of cases th at were resolved thro ugh trial. 27 Standard Pennsylvania Practice 2d § 135:450 After-discovered evidence-Recant ation. 9 proffered evidence was discovered after her plea and that it could not have been discovered Id. (citing Commonwealth v. Sanabria, 385 A.2d 1292, 1298 (Pa. 1978)). (Pa. 1970)). However, "[i]t is up to the trial court to judge the credibility of the recantation." Nelson, 398 A.2d 636, 637 (Pa. 1979) ( citing Commonwe a lth v. Cole man, 264 A.2d 649, 651 requests for a new trial unless we are satisfied that the recantation is true. Commonwealth v. "[r]ecantation testimony is considered extremely unreliable" and that we should deny 732 A.2d 1167, 1180 (Pa. 1999). In performing our analysis, we be ar in mind that Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009) and Commonwealth v. Williams, Id. (quoting Commonwealth 

### v. D 'Amato, 856 A.2d 806, 823 (Pa. 2004)); See also "[t]o obtain relief based upon newly-discovered evidence under the PCRA , 

### a petitioner must establish that: (l) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) the evidenc e is 

### not cumulative; (3) it 

### is not being used solely to impeach credibility; and (4) 

### it would likely compel a different verdict." ; _ · ·: Superior Court states that,

mechanics of dispensing with such a PCRA petition. 

### In Commonwealth 

### v, Gajewski, the Believing that the Appellee's petition was properly before us, we turn to the v. Peoples, 319 A.2d 679, 681 (Pa. 1974)). 2 

# . , • trial would also entitle defendant to withdraw his guilty plea
. "' Id. (quoting Commonwealth -- - - - --- - .. · · · · · - · - · -- - - - -··· · - - -------- --- - -- ·-- ~ ~- - - ·· · ·· · - · ·· · · · - · · ·- - - - ·· ------·---

The first bar the Appellee needed to overcome was a showing that the I f:

-- - ·- - · · · - · -- ·-- · · · .. .... .. . . . •- --- - -- - -- - - - · - · · .. ~ · · ·· - - · · · · · · -~ ~- ~ - - -- ----- 10

with minor victims who are unable to consent to being interviewed by defense counsel sans encountered no evidence that might or should have triggered counsel to try and communicate defense counsel could have been expected to probe for a recantation prior to trial. We for due diligence of counsel, we 

### fail to see how, with the procedural history of this case, victim's family, she was in no position to garner any recantations of the accusations. And as was known to the Appellee at the time of her plea. As Appellee had no contact with the the witnesses at trial. Rather, the only sensible conclusion is that we must consider that which could be overturned 

### by after-discovered evidence as the defendant would have never tested require the impossible. 

### If Commonwealth were to be correct in their contention then no plea they were considering the plea as a stand-in for the trial. As such, Appellant is seeking to evidence that would justify a new trial 

### will justify the withdraw of a guilty plea, we believe When the Superior Court in Grajewski, supra, indicates that any after-discovered the procession of this case. Appellee could have obtained the recantations through trial. We believe this is inapposite to evidenc e of crimes against children. Nonetheless, the Commonwealth opines that the accommodate the number of jurors who are disqualified because of their inability to hear so heinous that, in similar cases, we must always summon enlarged jury panels to Appellee was facing the accusations of four child victims who were accusing her of crime s is true that this is because of the Appellee's decision to enter an Alford plea; however, the prior to or at the time of trial. None of the accusations in this case have been put to the test. It ... . , . - · _ ------ - ------ -· -· · ·- · ----

, . .

. ' t; ; , 

## :. ·· ·11



### whi c h is oft

- defined as fifty percent plus one. See 42 Pa.C.S.A. § 

### 9543( a)(2){vi). The dilig e nce . We re member that the Appellee's burden here was preponderanc e of the evidenc e , we do not believe it could have been obtained at or prior to trial through reasonable The evidenc e w a s discovered after the Appellee's Alford plea. As discussed above, without the inp ut or participation o f th e defendant. with copie s o f Childre n's Advocacy Center interviews, which, by th e ir n ature , are produced for cros s - examination of the victims
. Rath er, the Appellee and her coun s el w ere provided evidence at the time of tri al. 649 A.2d 435, 448 (Pa. 1994). Here, there was no opportunity becau s e direct and cro s s- e xamination covered topics relevant to the after-discovere d could not have obtained the after-discovered evidence at, or prior to , the conclusi o n of tri al In Commonwealth v. Wilson, it 

### w a s found that the appell ant had n o t shown that he pl e a. any of the victims woul d re cant and the victims did not do s o prior to the e ntry o f Appellee' s 17 A.2d 873, 887 (Pa. 2011 ). Again, neither counsel, nor the App e lle e , h ad any notion that affidavit that , had counsel interviewed h er prior to trial, the truth w o uld h ave be en explain e d. discovered evidence cl aim failed because the witness proffering the e v id e nce admitted in an In Commonwealth v. Smith, 

### the Supreme Court of Pennsylvania found that an afterfrom th o se we e ncountered in o ur review of th e case law because it 

### did not g o to trial. defense would h ave been engaging in a 

### fishing e xpedition. Es s entially , this case is different parental permi ssion
. Absent some scintilla of evidence that the victims might rec ant, the . ...... ...

· -··· · · ·· -

. - -- - - - - - - --- ~ 

### -- - -.-- ~- 

### · - - -- - - - - ·--·· - · - · · - - · - - - - - - - -- - - - ·- · -- - - - - - - - --· · · · · ·- - - - - - - -- - ,__ .. - - · - - - - - - - - ----- --- - - - - - - - - - - - , . !
. ~ -.

### I

... --1------ - --

1

12 crimes and to which Appellee plead. For half of the accusers to recant is a tremendous blow Si:4illll formed half of the witnesses to the events that the Commonwealth alleged were Yet, those accusations are due no less consideration than those of adults. S• 

# U 3 and surmounted the third potential impediment to her being granted relief. 

# I Fourth, and finally, the Appellee needed to show that the after-discovered evid e nce 

## I ! would likely compel a different verdict. The initial accusations were brought by children. I di s cussed infra. As the e vidence was not offered solely to impeach credibility, the Appellee accusations form the basis of Commonwealth's third matter complained of , which is were in Appellee's care and to impeach the credibility of the younger siblings whose re cantations would be substantive evidence of what may have occurred when the children the recantations were not being used solely to impeach credibility. Here it i s clear that th e The third thing that the Appellee needed to show to succeed in her petition was that find them cumulative. flew in the face of the evidence offered up to and at the time of Appellee ' s plea, we did not be merely cumulative. As the recantations were first aired at the PCRA Hearing and they The second obstacle for the Appellee was that the after-discovered evidence could not generally in our granting of the Appellee's petition, we continue on with our analysis. point of contention. As the Commonwealth's first matter complained of avers that we erred second matter complained of is without merit and so we humbly seek affirmance on this Appcllee cleared the first PCRA hurdle. We therefore believe that the Commonwealth's . ... ....... . ,3 We n ote that copies ofS6and 

## soas Children' s Advocacy Center interviews were not made avail able to the Court
. Therefore, we could not make determinations about their credibility. 13 Se-told the interviewer that the children were tied up to a radiator, ld., at 9:55:05, and siblings were tied up on two separate occasions with his father's paint rags. Id., at 9:52:40
. Then, in contradiction to his own statement, after the interviewer asks if Appellee had ever hit him, semi.answers in the affirmative. Id. Next, S~ recounted how he and his "[he] got hit 

### by [Appellee]." (Children's Advocacy Center Interview, 7/3/14, at 9:51:20.) next to those interviews. without stating why we found them more compelling than their CAC interviews
. We turn possibility that the recantations would compel a different verdict. Up to this point, we have referred to S~ and Sitlll's recantations as credible differe nt verdict. 92 A.3d 1210 , 1219-20 (Pa. Super. Ct. 2014). Both Se8 

# J and S~ 

## I testified that the Appellee never harmed any of the children. Much like the incredible witne s s 

# I in Medina, S
... nd sewere so young at the time of the events in question that it is I 

### likely a jury would find the recantations overpowering. 3 As such, there is a distinct 

## I circumstance in Commonwealth v. Medina, wherein the recantation of one witness so I 

# I severely undercut that of 

### a witness known to have credibility issues that 

### it led the Superior Court to agree with the trial court 

### that there was a strong likelihood of a jury reaching 

### a call into que s tion the verity of the stories of the remaining witnesses. This is s imilar to the -----···-·-··--··

· - · .. ··· - . ·· ·· · ·· ·- - · - ·· -- · --- - - - - - - - - - - ·- -- - - - - - to a successful prosecution that is compounded becau; ; s~ ~ ~d Sp..,s recantati-;;,; ~ ·

During his CAC interview, Se-stated that an example of a lie would be that, -I

-- - -~ 

### · - - - - - -- -- - -- - - - - ·- - ---- · -- - - - ·- - · - - - - - - -- -- -- - - ---- - - - - - -- - -- - - -- - - - - "· · · - · · -- - - · .. 

### · - - - - - -- · - · -- ---- - --· -- - - · - - - - - - ·- . .bee n locked in his room. (CA C Interview, 7/3/14, at 9:54:40.) S, went on to tell the

CAC interviewer that his mother and father saw red marks o··s fac e and that they thought this was the result of heat. Id., at 10:03:05. Selllllli.,then stated that. reddened face was not caused 

### by heat; but, rather, by the Appellee smacking him, which a man entered the hous e based upon his voice. The lie is self-evid e nt. 

## t ; t.J Se 

# J has a younger brother named...., (CAC Interview, 7/22/14, at 9:45:15.) During the first incid e nt of being tied 

# up,6 is alleged by 

## st411111 to have man e nter the home . Id. If S~ had seen the man then he would not have stated h e knew add that th e window was closer than he had drawn on a diagram and he was able to see the realizing that he was supposed to have been chained to a radiator at the time, then hastened to s e eing the man, that he saw the man through a window. 

### I d. , at 10:02:50. 

# Setlllll perhaps contrast to S~'s claim, minutes later, following the prompti ng of the interviewer about breaking point that an older child was unaware or uncaring regarding the plight of his siblings. Se..,went on to describe how, during this incident, the Appellee proceeded ; 

### i downstairs after tying up the children and allowed a man to enter the home, which S~ knew to be the cas e bec ause he heard a man's voice. 

### Id. , al 9:59:30. This stands in stark ., i S~ has an older brother, S. (Children's Advocacy Center Interview,

7/22/14, at 9:44:35.) Inexplicably, S.was allowed to play video games or nap during this 

# I ordeal. (CAC Interview, 7/3/14, at 9:53:00.) Under these facts, it strains credulity beyond that that, as a result, he was burned, 

### Id., at 9:53:00. . -..

14 - . : · - . i15



### two separate incidents in which some of the children were tied up. Of course, three children Se credible at all in his story of the Appellee bringing a random man into the home on Sp
.. 's CAC interview. Such an obvious detail is telling in its absence. We did not find rocking Se- says he could overhear. Id., at l 0:06:55. The man makes no appearance in again and then the Appellee and the man engaged in inappropriate action based upon the S~hen told the CAC interviewer about a second incident in which he and his siblings were supposed to have been tied up by the Appellee. Id., at 10:06:10. 

# se11111, Sp
.. and Sa.re alleged to have been tied up again. Id., at 10:07:40. s•and 

# S.

i were, according to Se~laying videogames whils. was, again, in his room. Id., 

## I I 

### at I 0:07:40. Se nlleges the Appellee again invited the man from the first incident over We will not say this is impossible, but we found it 

### to be another instance of implausibility in

. S~'stale. age of ten, maintained their silence about abuse at the hands of their caretaker for months. abuse at the first opportunity. We are to believe that a 

### cohort of children, mainly under the and father about the abuse. Id., at 10:05:50 Yet, the children did not tell their parents of the the children, Se- stated that the children passed the time agreeing to tell their mother Additionally, during the first incident in which the Appellee is alleged to have bound SJ knew to be the case because, though chained to a radiator on 

### the third floor, 

# setllll9 heard Aery. Id. S could not have observed what, if anything, the



# _S__Lv Appellee might have done to redden
.... 's face. . .. ....... .

--- - - -- - · - · -- - - ~ - - - · 

### - - -- --- - · - ·- -- · · ·- -- ·-- - - --· -· - ~ · - · · · · - - .. · --· ··- -, . 1 · :16

the children were bound in the kitchen on the first day , Id., at 10:05: 10, our doubts about his location. Granted, Sr4lllagre e d that the children were bound on the third floor; however, he added the kitc hen, which never surfaced in Setllllllll's account. As S~lleges that interview credible when he diverged so greatly from Se- on a detail as important as with baby w ipes and paint rags. 

### Id., at 

### l 0:04:20. 

### Sptll also added that the children were the meat of the story, in contrast to Se-, SPlllladded that the children were bound o nly ever hit his s iblings on their hands or butts and nowhere else. Id., at 10:01 :50. Onc e into him on the hands and nowhere else. Id., at 9:58:50. Further, Sp 

## 81 :tated that the Appellee and hit him. Id., at 9:56:50. Questioned about this, SP91tsaid that the App e llec smacked In Sp9's CAC interviews, he stated that the Appellee used to put him in time out specific part of the second incident. (CAC Interview, 7/22/14, at 10:07:30.) interview in which he stated that both S~ and So.were wearing clothes during this grabbed So
.. s head and placed it near his privates and told 

## s<>9to "do it." Id., at 10:08:20. S~was supposed to have been present and watching this. 

### Id. S stated Se
.. told the CAC interviewer that during the second incident, the Appellee mollified by video games and accepting of a man entering the home for inappropriate lia s ons. held captive. We are incredulous that the children who were not bound would have been were free during the second alleged incident yet they did not liberate their siblings who were 

### ........

,. . I; ,

# - --· - -- ···--· · .. , ..__ -· ·"·-- - - ···-------·-·· ·- --------- .. -· ······-··-.•· -· · -·· ~· - - ·- .. ---- - ·--- "·-···--··· ..···- .. --------- -- - --- ·-·-·- ..-· - --- i
..-········ 17 request affinnance as to Commonwealth's first matter complained of. believe we erred in granting the Appellee's petiti o n for PCRA relief and we respectfully discovered evidence portion of the Post-Conviction Reli e f Act, relief was granted. We do not The Appellee having met all of the requirements fo r relief under the newl y recantations were con s istent in the main and were convincing to this Court. accusations in the CAC videos, which we found to be contradictory, S~ and SJtllll's 2014). Here, w e were convinced that the recantations were credible. Unlike the unsworn c onfirm rath er than undercut or dispel the allegations. 2014 WL 10979820, 2 (Pa. Super. Ct. In Grajewski, cited supra, the PCRA c ourt actually fou n d the supp o sed rec antation to the C ourt that he li e d in his CAC interview becaus e S~ had threatened to harm him 

### if h e did not. Mr. Stllconfirmed that Se-h a s been violent towards Sp
... o f what was to be exp e cted of him. Again , during his credible rec antation, Siilllllinformed se9mlland si:tllllls CAC interviews. Yet, we are co g nizant of the fact that some nineteen days elapsed between the interview s during which Se-could apprise Si9il It is undeniable that there were some c onsistencies amongst the inconsiste nci e s of home from the third floor during the first incident. We could cite more inconsi s te ncies that 

## I led us to believe that 

# se9111 and Srtllllts CAC interviews were not credible; however , I we believe the point h a s been made. - · · ··- - - · - · -- - - - ·· --- · · · · · · · · · - . -
.. -· --- - - - - · - - ·--- ·-· · · - ·- ·-- ---- - ·--· - ·- .. · · · ·· · - .. - · ·- and Se 's stories increased. setlllllclearly stated that he viewed a man enter the

t ,. : . ,18 It is true that two of the purported victims did not testify at the PCRA Hearing; analysis. so brief a portion of transcript and four victims' name s were recounted, so we move on to our plead to charges addressing but two victims. Yet, we admit, it is confusing to attempt to parse memorialized in the amended information. We believe it was contemplated that the Appcllce Commonwealth responded that the counts plead to addressed two children. 

### It i s certainly not consolidated charges for four victims each then we are left to wond er why the charges. ff it is the Commonwealth's contention that the two counts of EWOC address s p e cificity in the transcript as to which victims are addressed 

### by the two distinct EWOC to state that there was to be no contact with the victim s and listed four; however, we see no children?" And the Commonwealth replied: "Correct." 

### id. The Commonwealth then w e nt on this Court that these ch arges addressed two children. Id. We queried, "[s]o there's [sic] two (hereinafter: EWOC). (Transcript of Testimony, 5/8/15, at 2.) The Commonwealth stated to The amended information added two counts of Endangering Welfare of C hildren victims recanted. Appellee to withdraw her plea and reinstating her trial rights when only two of the four claim involving four victims. Therefore, the Appellant avers, we erred in allowing the counts of Endangering the Welfare of Children and that each count invo l ved a consolidated 

### : . : . ~ B. Remaining Accusers
. . . .. . . . . .. . . .. . .

· ·· 1 The Appellant's third matter complained of is that the Appellee plead guilty to two!

- -- -- ----------- .. . - · - - -----·- - - - ---- · -- - - ---- - · -- - -- -· -· · - -- - - -- - - - · -· · · · - ·-- - · -- - - - - · -- -- --- - - - · · - - --· · ·· - ---· · · - - --- --- · · · · - ---- 1- --·-- · · ·· - j 

# 2 - ~ ..,.~ /: -;? ~- - '

-· ~ _.;,~-/ ~C-- · "MICHAELE. BORTNER, JUDGE 

### DA TED: April 

# _J_, 2016 BY THE COURT, Ord er e ntered in this case on Nov e mber 30, 2015. Based upon the reasons stated above, this Court respectfully urges affirmance of the IV. Conclusion complained of. truth of s•and S.s accusations, to refuse 

### to revisit 

### the issue would be to cast aside 

### the most fundamental notions 

### of justice
. 

### We therefore pray 

### for affirmance as to thi s matter proff ered evidence that amounts to lies. In light of recantations that call into question the Appellee, one wonders 

### if, perhaps unwittingly , but nevertheless, the Commonwealth two of the four children state that none of the children were tied up or abused 

### by the youngest victims may have lied as well. Ultimately, this would be for a jury to decide. When of the victims through convincing recantations th at necessarily lead to a finding that the however, the two supposed victims who did testify called into question the allegations of all ~ -· - ···- - ···- • · •• · • - · • •· -- - • - '" • - - -· • ·····- - ----- · • • - ---~ ~ · - ••• " • · • · • ·· •• • •• •• · • ·· · • - · · ··' • · • - · •· •·- - - - - - -· · · • • , - · r --• · • - - - • · •• · •-••••• •• •••• ' • • · • ,. . , • .. , - • ·· •••• • "" " '" - ·· - ----· ···"'·· - • -- -- · •••• ··--·-• "'" • •• • · • .-... 

### .

l9 . ! '. : .