J-S40024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DUSTIN ALAN WALLS,

Appellant No. 2125 MDA 2013

Appeal from the Judgment of Sentence May 15, 2013

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0000361-2011

BEFORE: BENDER, P.J.E., BOWES, and PANELLA, JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 09, 2014

Dustin Alan Walls appeals from the judgment of sentence of two years 

and three months to fifteen years incarceration imposed by the trial court 

after a jury found him guilty of possession with intent to deliver (“PWID”) 

oxycodone. After careful review, we affirm.

Pennsylvania State Trooper John Brumbaugh and the Franklin County 

Drug Task Force utilized a confidential informant (“CI”) to purchase 

oxycodone on March 11, 2010. The CI purchased oxycodone in the parking 

lot of Kentucky Fried Chicken and handed the drugs to Trooper Brumbaugh. 

The Commonwealth charged Appellant with PWID with respect to this 

incident on January 18, 2011. Appellant filed a motion in limine seeking to 
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preclude any statements by the CI unless the CI testified, and argued for 

disclosure of the CI’s identity.1 The court denied the motion. Nonetheless, 

the identity of the CI was revealed ten days before trial as Dennis Rexrode. 

Rexrode did not testify at trial. However, Trooper Brumbaugh testified that 

Rexrode purchased drugs from Appellant on the date in question. Detective 

Darren North also testified that Rexrode was the CI involved. The court 

denied Appellant’s request for a missing witness instruction relative to 

Rexrode, and directed Appellant not to argue that position in his closing 

summation. The jury initially asked one question of the court, which was 

how the Commonwealth identified Appellant, before it found Appellant guilty 

of PWID. Thereafter, the trial court sentenced Appellant to two years and 

three months to fifteen years imprisonment. 

Appellant filed a timely post-sentence motion alleging the existence of 

after-discovered evidence. Specifically, Appellant learned that Rexrode 

denied involvement in the drug transaction. The court conducted a hearing 

on June 27, 2013, and scheduled an additional hearing. However, the 

Commonwealth continued the matter. Appellant filed a motion to extend the 

time to decide his post-sentence motion, see Pa.R.Crim.P. 720(B)(3)(b), on 

July 25, 2013. The court conducted the remainder of the post-sentence 

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1

 Appellant also filed a suppression motion, which is irrelevant for purposes 

of this appeal.
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hearing on October 10, 2013, and indicated that it had granted Appellant’s 

extension. 

Rexrode testified that he was not involved in any drug transactions 

with Appellant on behalf of the Commonwealth. He indicated that he had 

aided the Commonwealth with four specific targets, but was not involved 

with the investigation pertaining to Appellant. The Commonwealth 

countered with testimony from both Trooper Brumbaugh and 

Detective North. Detective North related that Appellant informed him that 

Trooper Brumbaugh confused the informant involved and that it was not 

Rexrode, but a person named Tom Land. According to Detective North, 

Appellant did not deny that he was involved in the drug transaction. 

Ultimately, Appellant’s motion was denied. This timely appeal ensued. 

The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. Appellant complied, 

and the trial court authored its Rule 1925(a) opinion. The matter is now 

ready for our review. Appellant’s sole issue on appeal is “[w]hether the trial 

court erred in denying Appellant[’]s [p]ost-[s]entence [m]otion for a new 

trial based on after discovered evidence in the form of the confidential 

informant denying having ever purchased narcotics from Appellant?” 

Appellant’s brief at 6. 

We review a trial court’s decision to deny or grant a motion for new 

trial on the basis of after-discovered evidence for an abuse of discretion. 
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Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013). Our Supreme 

Court has consistently opined that a motion for a new trial should be granted 

when the after-discovered evidence is producible and admissible and: 

(1) could not have been obtained prior to the end of trial with 

the exercise of reasonable diligence; (2) is not merely 

corroborative or cumulative evidence; (3) is not merely 

impeachment evidence; and (4) is of such a nature that its use 

will likely result in a different verdict on retrial. 

Id.

2

 A defendant must establish by a preponderance of the evidence that 

each of these prongs has been met to be entitled to a new trial. 

Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.Super. 2010).

Appellant argues that Rexrode’s testimony meets all four prongs of the 

after-discovered evidence test. He contends that the trial court agreed that 

he had satisfied the first two prongs by showing that the evidence was 

discovered after trial and could not have been discovered by the exercise of 

due diligence and the evidence was not cumulative. However, Appellant 

submits that the court erred in finding that the evidence would have been 

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2

 This test has received criticism with respect to the third element. See 

Commonwealth v. Choice, 830 A.2d 1005 (Pa.Super. 2003) (Klein, J. 

dissenting); see also Commonwealth v. Perrin, 59 A.3d 663 (Pa.Super. 

2013) (Wecht, J. concurring) (citing Choice, supra); Commonwealth v. 

Foreman, 55 A.3d 532 (Pa.Super. 2012) (Wecht, J. concurring) (citing 

Choice, supra). In this respect, Judge Klein and Judge Wecht astutely 

recognized that, in certain cases, impeachment evidence could reveal that 

the outcome of the trial would be different. We briefly discuss the history of 

this element in the body of this memorandum. 
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used solely to impeach Trooper Brumbaugh and was not likely to result in a 

different verdict. 

Appellant acknowledges that Rexrode’s testimony would impeach that 

of Trooper Brumbaugh. Nonetheless, he points out that this testimony also 

would be factual testimony that Appellant did not sell drugs to Rexrode, i.e., 

it is both impeachment evidence and exculpatory factual evidence. 

According to Appellant, Rexrode’s testimony would “factually account for the 

whereabouts of the informant who the Commonwealth specifically alleged to 

the jury to have been present in a vehicle at a specific date and time 

conducting a purchase of narcotics[.]” Appellant’s brief at 12. He adds that 

Rexrode’s testimony also calls into question the chain of custody of the 

drugs involved since Trooper Brumbaugh testified that Rexrode provided him 

with the drugs sold to him by Appellant. With respect to the prejudice 

aspect of the after-discovered evidence test, Appellant asserts that the 

evidence “speaks directly to [his] innocence.” Id. at 14. Appellant contends 

that it is likely that the jury would have reached a different outcome since 

the CI allegedly involved would have testified that he did not take part in the 

drug deal. 

The Commonwealth has elected not to file a brief, relying solely on the 

trial court opinion in this matter. The trial court set forth that Appellant did 

attempt to contact Rexrode by both phone and letter via the phone numbers 

and address provided by the Commonwealth prior to trial, and was 
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unsuccessful. The court found that Appellant exercised reasonable diligence 

in attempting to locate and discuss the matter with Rexrode. 

In addition, the court concluded that Appellant met the second aspect 

of the after-discovered evidence test. In this regard, the court reasoned 

that Rexrode’s testimony was not cumulative of Appellant’s testimony since 

Appellant did not testify regarding the CI used in the deal. Rather, Appellant 

stated that he did not deliver the drugs and could not have done so because 

he did not have a vehicle at that time. Since Rexrode’s testimony was that 

he was not the CI involved in this matter, and Appellant’s testimony did not 

encompass such a claim, the evidence was not cumulative. 

As noted, however, the trial court determined that Appellant could not 

meet the final two prongs of the after-discovered evidence paradigm. The 

court opined that Rexrode’s testimony would have been used solely to 

impeach Trooper Brumbaugh. Finally, the court concluded that Appellant 

could not demonstrate that the outcome of the trial would have differed on 

retrial had Rexrode testified. The court reasoned that Rexrode’s testimony 

only established his whereabouts, not those of Appellant. In its view, the 

evidence was not exculpatory. It added that Appellant’s own admission to 

Detective North was that Trooper Brumbaugh incorrectly identified the CI, 

not that he did not sell drugs on the date in question. 

 Here, Appellant’s attempts to contact Rexrode prior to trial were 

unsuccessful. Following trial, Appellant, according to his post-sentence 
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motion, encountered Rexrode at a local gas station. Rexrode affirmed that 

he did not purchase drugs from Appellant and that same day reiterated 

that claim to counsel for Appellant. As mentioned, the trial court determined 

that Appellant could not have learned the nature of Rexrode’s testimony 

until after trial and that he exercised diligence in attempting to locate and 

contact Rexrode before trial. We decline to disturb this ruling. 

In addition, we agree with the trial court’s assessment that Rexrode’s 

testimony was not merely cumulative or corroborative of evidence admitted 

at trial. Rexrode would have testified that he did not purchase drugs from 

Appellant on the date in question. Although Appellant testified that he did 

not sell drugs on the relevant date, Rexrode’s proffered testimony differed 

from the testimony of Trooper Brumbaugh. Certainly, Rexrode’s testimony 

would have impeached Trooper Brumbaugh; however, we disagree that 

Rexrode’s testimony would have been used solely to impeach the trooper. 

Evidence that Rexrode did not purchase drugs from Appellant would be 

exculpatory in nature based on the Commonwealth’s evidence admitted at 

trial. In the present case, the Commonwealth alleged and introduced 

evidence that Appellant sold oxycodone, in the form of Percocet pills, to 

Rexrode. Rexrode’s testimony that he did not purchase the pills is 

exculpatory in this respect. This, of course, does not mean that Appellant 

did not sell drugs to another individual; nevertheless, the Commonwealth’s 

trial evidence was premised on a sale to Rexrode. Hence, we disagree with 
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the trial court’s conclusion that Rexrode’s testimony was merely 

impeachment evidence. Impeachment evidence that is after-discovered may 

compel a different verdict where it is material and exculpatory. 

Commonwealth v. Mosteller, 284 A.2d 786 (Pa. 1971); Commonwealth 

v. Krick, 67 A.2d 746 (Pa.Super. 1949). Moreover, simply because 

evidence can be used to impeach another witness does not mean that its 

sole use is for impeachment purposes. Indeed, it is clear that the original 

purpose of the impeachment prong of the test has come unhinged from its 

original intent and blurred the law in this area. 

In Moore v. Philadelphia Bank, 5 Serg. & Rawle 41 (Pa. 1819), the 

Pennsylvania Supreme Court set forth that, to be entitled to a new trial 

based on after-discovered evidence: “1st, that the evidence has come to his 

knowledge since the trial; 2d, that it was not owing to want of due diligence, 

that it did not come sooner; and 3d, that it would probably produce a 

different verdict, if a new trial were granted.” Later, and after citing to 

Moore, the Pennsylvania Supreme Court expounded on the law regarding a 

motion for a new trial based on after-discovered evidence in a criminal case 

in Commonwealth v. Flanagan, 7 Watts & Serg. 415 (Pa. 1844). The 

Flanagan Court opined,

a great deal of testimony has been given, which does not 

establish independent facts, material to the issue; but its only 

effect is to impeach the credit of some of the witnesses 

examined on the former trial. But the rule of law is, that the 

testimony must go to the merits of the case, and must not be 

merely for the purpose of impeaching the testimony of the 
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witnesses. For newly discovered evidence, discrediting witnesses 

who testified on a former trial, a new trial is never granted.

Id. at 423. The case relied upon by the Flanagan Court for this proposition 

was People ex rel. Oelricks v. Superior Court of City of New York, 10 

Wend. 285 (1833).3 That decision delineated:

With respect to granting new trials on the ground of newly 

discovered testimony, there are certain principles which must be 

considered settled. 1. The testimony must have been discovered 

since the former trial. 2. It must appear that the new testimony 

could not have been obtained with reasonable diligence on the 

former trial. 3. It must be material to the issue. 4. It must go to 

the merits of the case, and not to impeach the character of a 

former witness. 5. It must not be cumulative. 4 Johns. R. 425. 5 

id. 248. It cannot be denied in this case that the testimony 

offered was material to sustain the point of defence; and that it 

is not liable to the objection that it goes to impeach the plaintiff's 

witness. Russell says nothing about the character of the witness 

Heckscher, but contradicts the fact sworn to by him.

Id. at 292 (italics in original). Certainly, factual testimony that contradicts 

the testimony of another witness can be impeachment evidence, but it is not 

evidence that impeaches the character of a witness. The earlier New York 

case cited therein reasoned, “A new trial is not to be granted, merely on the 

discovery of new evidence, which would impeach the character of a witness 

at the trial. There would be no end of new trials on that ground.” Shumway 

v. Fowler, 4 Johns. 425 (N.Y.Sup. 1809). Thus, the impeachment evidence 

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3

 The Flanagan Court entered an incorrect pin cite as it cited to 10 Wend. 

492, rather than 292. The case cited has no bearing on after-discovered 

evidence. However, the Court cited to the correct case in the next sentence 

in discussing the cumulative evidence portion of the after-discovered 

evidence test. 
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referred to by the early courts was in reference to impeaching the character 

of a witness or impeachment as to non-material facts. Where the evidence 

contradicted factual testimony as to a material issue, it was not considered 

as being used solely for impeachment purposes. See Oelricks, supra, cited 

by Flanagan, supra. This nuance was accepted in Mosteller, supra, and 

Krick, supra. The alleged after-discovered evidence in those matters 

involved recantation from a victim. While such testimony would certainly 

impeach the victim’s earlier testimony, it also was material factual testimony 

that contradicted facts sworn by that person and was exculpatory in nature. 

Hence, the original import of the impeachment prong of the afterdiscovered evidence test applied to evidence that impeached the character 

of a witness, or was impeachment that was immaterial to the merits of the 

case, not evidence that could be exculpatory. But see Padillas, supra at 

367 (citing to Commonwealth v. Pagan, 950 A.2d 270 (Pa. 2008), which 

did not rely on the impeachment aspect of the after-discovered evidence 

test, and opining that an admission by the brother of the defendant to 

having committed the crime would be used solely for impeachment 

purposes); Commonwealth v. Kostan, 37 A.2d 606 (Pa. 1944). 

Setting aside whether this evidence was not solely for impeachment, 

we agree that Appellant is not entitled to relief because Rexrode’s testimony 

would not likely result in a different verdict upon re-trial. Even assuming 

arguendo that Rexrode was not the CI involved, Appellant acknowledged to 
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Detective North after his trial that he sold the drugs on the date and place in 

question to a different CI. Such an admission negates the exculpatory 

aspect of Rexrode’s testimony. As the Flanagan Court reasoned over a 

century and a half ago, “[i]f, with the newly discovered evidence before 

them, a jury ought to come to the same conclusion as the former jury, it 

would be worse than useless to grant a new trial.” Id. at 424.

Judgment of sentence affirmed. 

Judge Panella Concurs in the Result.

P.J.E. Bender files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/2014