J-S14034-19

____________________________________

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONTEZ PERRIN 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 11 EDA 2018

Appeal from the Order December 12, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003284-2008

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 23, 2019

Dontez Perrin (Perrin) appeals from the December 12, 2017 order of the 

Court of Common Pleas of Philadelphia (trial court) denying his motion for a 

new trial.1 For the following reasons, we vacate and remand.

We take the following pertinent facts and procedural history from our 

review of the certified record. At trial, Lynwood Perry (Perry) testified that 

he, Perrin and Amir Jackson (Jackson) robbed the victim, Rodney Thompson 

(Thompson). Perry admitted that he was testifying for the Commonwealth 

pursuant to a deal with the federal government that he would receive a lighter 

____________________________________________

1 The court incorrectly identified its order as being under the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. However, as explained above, 

this was an order denying a timely filed motion during his direct appeal 

pursuant to Pennsylvania Rule of Criminal Procedure 720(C).
J-S14034-19

- 2 -

sentence for federal charges arising from this and other robberies in which he 

participated if he cooperated with the prosecution. Thompson also testified, 

stating that he knew Perry and Jackson prior to the robbery, but he gave 

conflicting descriptions of the third attacker and failed to identify Perrin 

consistently. On September 13, 2010, a jury convicted Perrin of Aggravated 

Assault, 18 Pa.C.S. § 2702(a); Robbery, 18 Pa.C.S. § 3701(a); and related 

crimes.2 The trial court sentenced him on November 10, 2010, to an 

aggregate term of incarceration of not less than five nor more than ten years.

Perrin appealed nunc pro tunc on April 29, 2011. On June 6, 2011, while 

his appeal was pending, the District Attorney’s Office forwarded a letter from 

the FBI to Perrin’s counsel. The document contained FBI Special Agent Joseph 

Majarowitz’s summary of a May 9, 2011 interview with Curtis Brown (Brown),

Perry’s prison cellmate. Brown said that when Perry talked about testifying in 

Perrin’s case, he indicated that he testified that Perrin was involved because 

“someone had to ‘go down’ for it,” but that actually he was not guilty. (FBI 

Form FD-302, 5/18/11).

____________________________________________

2 Specifically, in addition to Aggravated Assault and Robbery, the jury 

convicted him of Recklessly Endangering Another Person, Criminal Conspiracy, 

Possession of an Instrument of Crime, Firearms not to be Carried Without a 

License, Possession of a Firearm by a Minor, and Receiving Stolen Property, 

pursuant to 18 Pa.C.S. §§ 2705, 903(a)(1), 907(a), 6106(a)(1), 6110.1(c), 

and 3925(a), respectively.
J-S14034-19

- 3 -

Based on the letter, Perrin petitioned this Court, seeking either to 

remand the case for a new trial or to enable him to pursue an after-discovered 

evidence petition with the trial court.3 This Court granted the petition for 

remand on January 12, 2013, and our Supreme Court vacated that decision 

and remanded for our reconsideration in light of its holding in 

Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014).4 On reconsideration, 

we found that Castro did not affect our disposition because “[Perrin’s] petition 

for remand clearly state[d] that, if granted an evidentiary hearing, he [would] 

call [] Perry and [] Brown, as well as FBI Special Agent [] Majarowitz, as 

witnesses to offer exculpatory evidence that establish[es] that a different 

____________________________________________

3 Pursuant to the comment to Pennsylvania Rule of Criminal Procedure 720:

Unlike ineffective counsel claims, which are the subject of

Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), 

paragraph (C) requires that any claim of after-discovered 

evidence must be raised promptly after its discovery. Accordingly, 

after-discovered evidence discovered during the post-sentence 

stage must be raised promptly with the trial judge at the postsentence stage; after-discovered evidence discovered during the 

direct appeal process must be raised promptly during the direct 

appeal process, and should include a request for a remand to the 

trial judge; and after-discovered evidence discovered after 

completion of the direct appeal process should be raised in the 

context of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii) and (b)(2).

Pa.R.Crim.P. 720(C), Comment.

4 The Castro Court held that “a [Rule 720] motion must, at the very least, 

describe the evidence that will be presented at the hearing. Simply relying on 

conclusory accusations made by another, without more, is insufficient to 

warrant a hearing.” Castro, supra at 598 (footnote omitted).
J-S14034-19

- 4 -

result would obtain if [he was] granted a new trial.” (Commonwealth v. 

Perrin, 108 A.3d 50, 54 (Pa. Super. 2015)). Therefore, we again remanded 

to the trial court for it to conduct an evidentiary hearing to allow Perrin to 

present this after-discovered evidence to enable the trial court to determine 

whether it warranted a new trial.

In order to obtain relief on after-discovered evidence, Perrin was 

required to establish at the hearing, by a preponderance of the evidence, that 

the evidence:

(1) could not have been obtained prior to the conclusion of the 

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

corroborative or cumulative; (3) will not be used solely to 

impeach the credibility of a witness; and (4) would likely 

result in a different verdict if a new trial were granted.

Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009), cert. denied, 

562 U.S. 857 (2010) (citation omitted; emphasis added).5

At the evidentiary hearing, Perrin presented the testimony of Special 

Agent Majarowitz and Brown, but not Perry. Special Agent Majarowitz testified 

that Brown was a cooperating witness against his co-defendants who 

committed armed robberies of Philadelphia area pharmacies. He testified that 

in an interview prior to trial, Brown told him that Perry, his cellmate, stated 

____________________________________________

5 “Recantation testimony is one of the least reliable forms of proof, particularly 

when it constitutes an admission of perjury.” Commonwealth v. Padillas, 

997 A.2d 356, 366 (Pa. Super. 2010), appeal denied, 14 A.3d 826 (Pa. 2010). 

(citation and internal quotation marks omitted).
J-S14034-19

- 5 -

that he lied about Perrin's involvement in the robbery for which he was 

convicted. Special Agent Majarowitz passed this information along to an FBI 

agent and federal prosecutor. He also stated that Brown did not receive any 

additional benefit at his own sentencing for the information about Perry.

Brown testified at the hearing that he did not know Perrin but was 

cellmates with Perry for about two months at the Federal Detention Center in 

Philadelphia. He testified that Perry told him that he lied on the stand about 

Perrin’s involvement because he was hoping to get a more lenient sentence. 

Brown testified that he only told Special Agent Majarowitz about Perry because 

he felt it was the right thing to do, not because he believed that he had to do 

so to get sentencing consideration in his case.

The trial court denied Perrin’s motion for a new trial, explaining that, 

because Perrin failed to present Perry to testify that he had lied on the stand, 

the testimony of Brown and Special Agent Majarowitz was hearsay that Perrin 

only could use to impeach Perry’s credibility, a purpose prohibited by 

Pennsylvania precedent. (See N.T. Hearing, 8/25/17, at 6-52; N.T. Hearing, 

11/02/17, at 31; Order, 12/12/17). The trial court also stated that “[it was] 

unable to find that [Perrin] has been able to get through the four prong test 

as [he is] without the appearance of . . . Perry where [he] would have to . . . 

either admit that he lied, either go through cross-examination, some 

explanation, or somehow deny that . . . Brown ever heard what he said that 

he heard.” (N.T. Hearing, 11/02/17, at 31; see also N.T. Hearing, 12/12/17, 
J-S14034-19

- 6 -

at 4 (trial court explaining that “[it] had no authority to make a finding that 

Mr. Perrin should prevail on the petition” because Perry did not testify at the 

hearing)). Perrin timely appealed.

6, 7

Perrin contends that the trial court erred in finding that, to meet the 

standard for after-discovered evidence, Perry would have to testify. Even 

though Perry did not testify, he contends that he is entitled to a new trial 

because, although Brown’s proffered testimony is hearsay, it is admissible 

evidence for the truth of the matter asserted, i.e., that Perry stated that he 

lied in his testimony implicating Perrin. See Pa.R.E. 801(c). Because Perrin 

contends that is admissible evidence, he maintains that if the trial court finds 

Brown’s testimony to be credible, he has established that he is entitled to a 

new trial.

____________________________________________

6 Our standard of a review of this matter is for an abuse of discretion. See 

Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995) (“[A]n 

appellate court may not interfere with the denial or granting of a new trial 

where the sole ground is the alleged recantation of state witnesses unless 

there has been a clear abuse of discretion.”) (citation and internal quotation 

marks omitted).

7 On May 22, 2018, this Court received a letter from the trial court advising 

that the trial judge is no longer with the court, but that we could find the 

reasons for his decision in the transcripts from the November 2 and December 

12, 2017 hearings. Not only do we not have the benefit of the trial court 

opinion, the Commonwealth has not filed a brief in this matter in spite of 

receiving three extensions of time within which to do so.
J-S14034-19

- 7 -

The question then is whether Brown’s testimony is admissible hearsay 

under Pennsylvania Rule of Evidence 804(b). In relevant part, the Rule

provides:

(b) The Exceptions. The following are not excluded by the rule 

against hearsay if the declarant is unavailable as a witness:

* * *

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position 

would have made only if the person believed it to be 

true because, when made, it was so contrary to the 

declarant’s proprietary or pecuniary interest or had so 

great a tendency to invalidate the declarant’s claim 

against someone else or to expose the declarant to 

civil or criminal liability; and

(B) is supported by corroborating circumstances 

that clearly indicate its trustworthiness, if it is offered 

in a criminal case as one that tends to expose the 

declarant to criminal liability. (Emphasis added.)

Pa.R.E. 804(b)(3).

Based on the foregoing, Perry’s statement to Brown certainly would be 

a statement against interest that could be introduced for the truth of the 

matter asserted. It would expose him to criminal liability for perjury, and the 

context in which it was made would lead a reasonable person to believe that 

the statement would not have been made if it were not true. See 

Commonwealth v. Brown, 52 A.3d 1139, 1181-82 (Pa. 2012). However, 

this statement would only be admissible if Perry was “unavailable” to testify.
J-S14034-19

- 8 -

Regarding the unavailability of a witness, Pennsylvania Rule of Evidence

804 provides, in pertinent part, as follows:

(a) Criteria for Being Unavailable. A declarant is considered to 

be unavailable as a witness if the declarant:

(1) is exempted from testifying about the 

subject matter of the declarant’s statement because 

the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite 

a court order to do so;

* * *

(5) is absent from the trial or hearing and the 

statement’s proponent has not been able, by process or 

other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay 

exception under Rule 804(b)(1) or (6); or

(B) the declarant’s attendance or testimony, in the case 

of a hearsay exception under Rule 804(b)(2), (3), or (4).

Pa.R.E. 804(a)(1), (2), (5) (emphasis added).

In this case, Perry refused to go to the video screen in the prison to 

testify at the hearing on Perrin’s motion for a new trial. Even though Perrin 

failed to subpoena Perry or request a court order for him to testify, the 

certified record reflects that both Perrin and the Commonwealth made ongoing 

attempts to secure his testimony and arranged for him to testify from prison 

by video. (See, e.g., Docket Entry, 4/16/15 (granting continuance to allow 

Commonwealth to bring witness from federal custody); Docket Entry, 1/18/17 
J-S14034-19

- 9 -

(assigning case to trial judge and observing Commonwealth needs witness via 

video)).

Based on our review of the record, we conclude that Perrin was unable 

to procure Perry’s attendance through “reasonable means,” and Perry was 

“unavailable” within the meaning of Pa.R.E. 804. See Commonwealth v. 

Nelson, 652 A.2d 396, 398 (Pa. Super. 1995) (holding that the 

Commonwealth made a good faith effort to produce live testimony where it 

called and questioned a witness who “steadfastly refused to answer any 

questions or to read any prior statements to refresh his recollection”); 

Commonwealth v. Melson, 637 A.2d 633, 637 (Pa. Super. 1994) (stating 

that “[t]he test for availability under the Sixth Amendment is broad: a witness 

is unavailable if the prosecution has made a good faith effort to introduce its 

evidence through the live testimony of the witness and, through no fault of its 

own, is prevented from doing so”) (citation omitted).

Therefore, we vacate the court’s order denying Perrin’s motion for a new 

trial and remand for the determination of whether Brown’s testimony was 

credible so as to justify a new trial. We note that the original trial court judge 

who decided Perrin’s claim is no longer sitting. Hence, on remand, we direct 

the jurist appointed to handle this matter to hold a hearing at which Perrin 

shall present his witnesses again so that the trial court need not rely on a cold 

record to make its credibility determinations. See Commonwealth v. 

Sharaif, ___ A.3d ___, 2019 WL 1088565, at *3 (Pa. Super. Mar. 8, 2019) 
J-S14034-19

- 10 -

(remanding for a new suppression hearing where the trial judge failed to make 

appropriate findings of fact and conclusions of law and the trial judge was no 

longer on the bench).

Order Vacated. Case Remanded. Jurisdiction Relinquished.

Judge Lazarus joins the memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/19