J-S67044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     Appellee             :
                                          :
                     v.                   :
                                          :
GIOVANNI ROBERT MUCCI,                    :
                                          :
                     Appellant            :     No. 1754 EDA 2018

                 Appeal from the PCRA Order April 30, 2018
             in the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002024-2013

BEFORE: OTT, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED JANUARY 04, 2019

     Giovanni Robert Mucci (Appellant) appeals from the order dismissing his

motion for new trial based upon after-discovered evidence, which the trial

court treated as a petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

     We provide the following background. On October 30, 2014, Appellant

was found guilty of numerous charges stemming from actions that occurred

on September 13, 2012. That evening, around 10:00 p.m., Officer Michael

Taylor of the Upper Darby Township Police Department observed a silver

Lincoln Navigator stop suddenly in the middle of the street. The car remained

there for approximately 20 seconds, when Officer Taylor decided to initiate a




* Retired Senior Judge assigned to the Superior Court.
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traffic stop to determine why the car was stopped in the middle of the street.

Officer Taylor also called for back up1 and decided not to approach the car

until other officers arrived.

      The first officer to respond was Officer Stephen Oreskovich.            Once

Officer Oreskovich arrived, Officer Taylor approached the driver, who was later

identified as Appellant.        According to Officer Taylor, Appellant appeared

nervous, his hands were trembling, and Officer Taylor was unable to

determine if Appellant had a weapon. Thus, Officer Taylor asked Appellant to

step out of the vehicle to conduct a pat down for weapons. Appellant opened

the driver’s side door, placed his left foot on the ground as if he were going to

step out of the vehicle, “then all of a sudden [leaped] back into the car [and]

began to slam the door shut.” N.T., 10/22/2014, at 126.             Despite being

ordered to stop and get out of the car, Appellant started the vehicle, attempted

to strike Officer Taylor, and fled the scene in his vehicle, all of which Officer

Taylor announced over the police radio.

      A police chase ensued, with a number of police vehicles chasing

Appellant. During the course of this chase, Appellant violated traffic laws, hit

a parked vehicle, and hit police vehicles occupied by Officer David Snyder and


1At the police station, Officer Francis George received that call. At trial, Officer
George testified that “a call came over the police radio that an officer was out
with a silver Lincoln Navigator that had just stopped in front of him with the
operator sticking his hands out the car window.” N.T., 10/24/2014, at 20.
Believing this to be “odd”, Officer George “jumped in [his] police car with [his]
partner[, Officer Shawn Kenney,] and [they] drove to the scene.” Id.


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Officer James Billie. An officer in one of the vehicles chasing Appellant, Officer

Amanda Klingensmith, “relayed on the radio that she observed a gun in

Appellant’s hand.” Commonwealth v. Mucci, 143 A.3d 399, 404 (Pa. Super.

2016). “[A]s Appellant attempted to cut across a store parking lot, a police

cruiser being driven by [Officer] George collided with Appellant’s vehicle, thus

stopping the pursuit.” Id. “[Officer] George testified that, as he pointed his

duty weapon at Appellant and demanded to see his hands, Appellant threw a

dark object out the passenger side.”2 Id. at 407 (citing N.T., 10/24/2014, at

27). “Officer Oreskovich testified that Appellant refused to exit his vehicle so

the police pulled him out of his vehicle.” Id. at 404. After Appellant was pulled

from the vehicle, a struggle ensued, and officers had to Taser Appellant in

order to subdue him.

      Eventually, Appellant was handcuffed and transported to a local

hospital. According to Officer Francis Devine, based upon his observations of

Appellant at the scene, he believed “Appellant was under the influence of a

controlled substance and/or alcohol.” Id. at 404. Blood testing at the hospital

confirmed that Appellant’s blood was positive for “benzodiazepine agents,

opiates, and amphetamines.” Id. at 405.           Furthermore, upon searching

Appellant’s vehicle pursuant to a warrant, “police discovered a black handgun




2 Later, Detective Raymond Blohm recovered a black revolver approximately
seven feet from the passenger side of Appellant’s vehicle.
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holster, a small baggie containing a white powdery substance, and a pill bottle

containing several different types of pills.” Id. at 406.

        As a result of this incident, Appellant was charged with numerous crimes

related to the injuries that occurred to police officers involved in the chase,

his reckless driving and fleeing from police officers, resisting arrest, and

possession of controlled substances and paraphernalia. Prior to his jury trial,

Appellant requested, and was granted, permission to proceed pro se.3          In

addition, he served subpoenas on 15 individual police officers, as well as the

Upper Darby Police Department, seeking disciplinary files for all of these

officers. The Commonwealth moved to quash these subpoenas, and the trial

court granted that motion.

        A jury trial commenced on October 20, 2014. At trial, with Appellant

representing himself, many officers testified about the incident as discussed

supra.     Appellant’s defense was that he acted reasonably under the

circumstances, and that the officers used more force than was necessary to

subdue him.

        The jury convicted Appellant of aggravated assault as to Officer Snyder,

aggravated assault as to Officer Billie, fleeing or attempting to elude a police

officer, driving under the influence of a controlled substance, resisting arrest,

possession of a controlled substance, and possession of drug paraphernalia.

On January 9, 2015, Appellant was sentenced to an aggregate term of 10 to


3   Appellant was appointed stand-by counsel.
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22 years of incarceration to be followed by four years of probation. Appellant,

through counsel, timely filed post-sentence motions, which were denied.

Appellant timely filed a notice of appeal, and a panel of this Court affirmed

Appellant’s judgment of sentence on June 29, 2016. Mucci, 143 A.3d at 412.

Appellant timely petitioned our Supreme Court for allowance of appeal.

      Prior to our Supreme Court’s ruling on Appellant’s petition, Appellant,

through counsel, on January 17, 2017, filed a motion for a new trial based

upon after-discovered evidence, as well as a petition for remand with our

Supreme Court. By way of background, after Appellant was arrested in this

matter, he instituted a civil lawsuit against the Upper Darby Township Police

Department and officers involved in this case in the United States District

Court for the Eastern District of Pennsylvania.     During discovery for those

proceedings, Appellant was provided with a document dated September 14,

2012, entitled “Upper Darby Township Police Department Use of Force Report”

(the Report) authored by Officer George. Motion for New Trial, 1/17/2017, at

¶ 7. In the Report, Officer George detailed Appellant’s actions after Officer

George’s vehicle ran into Appellant’s vehicle.      Officer George wrote that

Appellant “had just thrown [a] firearm from vehicle and put hands out

driverside (sic) window.” Id. at ¶ 8, Exhibit A. The Report also provided that

Appellant’s hands remained outside the driver’s side window, even though

Appellant refused commands to exit the vehicle. Id. Appellant contends that

this information was contrary to Officer George’s testimony at trial. Id. at ¶ 9.


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Appellant argues that the Report entitles him to a new trial on the resisting

arrest charge, because it shows that Appellant was “cooperative with police

but that police utilized excessive force in apprehending him.” Id. at ¶ 14.

      On April 11, 2017, our Supreme Court denied both Appellant’s petition

for allowance of appeal and his petition for remand. Commonwealth v.

Mucci, 168 A.3d 1252 (Pa. 2017).        On August 8, 2017, the trial court

concluded that Appellant’s motion for new trial based upon after-discovered

evidence should be treated as a PCRA petition and ordered the Commonwealth

to file a response. The Commonwealth filed a response, and on September

29, 2017, the PCRA court filed notice of its intent to dismiss Appellant’s PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907.     Appellant filed a

response, and the PCRA court conducted a proceeding to discuss the positions

of Appellant and the Commonwealth on April 13, 2018. See generally, N.T.,

4/13/2018. On April 30, 2018, the PCRA court denied Appellant’s petition.

      Appellant timely filed a notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant contends the

PCRA court erred in denying the petition because the Report contained

“substantive evidence [that] contradicted sworn testimony given by [Officer

George] at trial.” We review this issue mindful of the following.4


4 We would be remiss not to point out a procedural issue in this case.
Pennsylvania Rule of Criminal Procedure 720(C) provides that “[a] post-
sentence motion for a new trial on the ground of after-discovered evidence
must be filed in writing promptly after such discovery.” Pa.R.Crim.P. 720(C).
The comment to that rule provides the following.
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             Our standard of review of an order granting or denying post-
      conviction relief is limited to examining whether the court’s
      determination is supported by evidence of record and whether it
      is free of legal error…. After-discovered evidence is a basis for a
      new trial only if it: (1) has been discovered after the trial and 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 for impeachment
      purposes; and (4) is of such a nature and character that a different
      verdict will likely result if a new trial is granted.




      Accordingly, after-discovered evidence discovered during the
      post-sentence stage must be raised promptly with the trial judge
      at the post-sentence 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.

Pa.R.Crim.P. 720 (comment) (emphasis added).

       Instantly, Appellant filed his motion for a new trial on January 17, 2017,
which was prior to our Supreme Court’s ruling on his petition for allowance of
appeal. In addition, on the same day, Appellant filed with our Supreme Court
an application for remand for a hearing on a motion for new trial based upon
after-discovered evidence.          The Supreme Court subsequently denied
Appellant’s application for remand. However, it is unclear what effect the
Supreme Court’s order had on the procedural posture of Appellant’s motion
for new trial filed with the trial court, which was filed before the completion of
Appellant’s direct appeal. Moreover, the PCRA does not come into effect until
a judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Here,
Appellant’s judgment of sentence became final on July 10, 2017, after
Appellant did not file a petition for writ of certiorari to the United States
Supreme Court. Thus, Appellant’s motion for new trial was filed prior to his
right to be able to file a PCRA petition. Nevertheless, at the hearing, counsel
for Appellant told the court that this motion for a new trial was a PCRA petition.
N.T., 4/13/2018, at 10. In addition, the standard for whether Appellant is
entitled to a new trial under a timely-filed PCRA petition or a motion for new
trial based upon after-discovered evidence is the same.
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Commonwealth v. Cobbs, 759 A.2d 932, 934 (Pa. Super. 2000) (internal

citations omitted).

        At issue in this case is the Report, and specifically the portion of the

Report where Detective George writes that after Appellant threw an object

from the vehicle, he “put [his] hands out [the] driversside [sic] window.”

Motion for New Trial, 1/17/2017, at Exhibit A. According to Appellant, this

new information could not have been discovered prior to trial,5 is not merely

corroborative or cumulative, will not be used solely for impeachment, and if it

were available during trial, the outcome of the trial on the resisting arrest

charge and aggravated assault charges6 would have been different. See

Appellant’s Brief at 31-34. Appellant argues that Officer George’s writing this

information in the Report, while then testifying to the opposite at trial, is

substantive evidence that Appellant “tried to surrender and if a finder of fact




5   The Commonwealth does not contest this point.

6 In his motion for new trial, Appellant requested a new trial on the resisting
arrest charge based upon the Report. See Motion For New Trial, 1/17/2017,
at ¶ 14. In addition, he requested a new trial on the aggravated assault
charge related to Officer Billie based on information he learned during a
deposition of another officer. Id. at ¶¶ 15-23. On appeal, Appellant argues
that the Report entitles him to a new trial on both the aggravated assault and
resisting arrest charges. See Appellant’s Brief at 35. It is not entirely clear
whether his claim that the Report entitles him to a new trial on the aggravated
assault charge is a claim he failed to raise in the trial court in violation of
Pa.R.A.P. 302(a). However, based upon our discussion infra, it does not
matter, because Appellant has not satisfied this Court he is entitled to relief.


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accepts that conclusion, the rest of Appellant’s defense falls into place.” Id.

at 35.

         The trial court considered this argument and concluded that “the

information contained in the Report is not new, [and] it merely corroborates

the information contained in the Police Incident Report regarding the position

of [Appellant’s] hands.” Trial Court Opinion, 7/19/2018, at 2. In addition, the

trial court concluded that the information in the Report would not likely result

in a different verdict. Id.

         We begin by considering whether the Report is corroborative or

cumulative,     which   was    recently   defined   by   our   Supreme   Court   in

Commonwealth v. Small, 189 A.3d 961 (Pa. 2018), and referred to as the

“same point, same character test.” Id. at 973.

         [A]fter-discovered evidence is merely corroborative or cumulative
         — and thus not sufficient to support the grant of a new trial — if
         it is of the same character and to the same material point as
         evidence already adduced at trial. It is clear the terms “of the
         same character” and “to the same point” refer to distinct qualities
         of evidence; to be “merely corroborative or cumulative,” newly
         discovered evidence must tend to prove material facts that were
         already in evidence at trial, and also be of the same grade or
         character of evidence as that produced at the trial to prove those
         material facts. If the new evidence is of a different and “higher”
         grade or character, though upon the same point, or of the same
         grade or character on a different point, it is not “merely”
         corroborative or cumulative, and may support the grant of a new
         trial based on after-discovered evidence.

Id. at 973–74 (citations omitted).

         During direct examination at trial, Officer George offered the following

description of the events after Appellant’s car was forced to stop.

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      [Officer George:] We were ordering [Appellant] to show me his
      hands, show me his hands, show his hands. Immediately – when
      we immediately hit and I was still in the car I was focused on
      [Appellant]. We kind of – you know, we kind of got rocked a little
      bit. He kind of – he was leaning over his seat. I saw him throw
      a dark colored – a dark object out the passenger side window. I
      didn’t know what it was, but it was, you know, some object that
      was dark. Again, I got out and was ordering him commands at
      gunpoint to show me his hands.

      [Commonwealth:] Did he put his hands up?

      [Officer George:] He initially did, and then when Officer Kenny was
      on the driver’s side he – I think right now there is another officer.
      Officer Oreskovich was over with Officer Kenn[e]y. [Appellant]
      became real fidgety and put his hands down and stopped
      complying.

N.T., 10/24/2014, at 26-27.

      Upon cross-examination, Appellant presented Officer George with the

police incident report filed by Officer George. In that report, Officer George

wrote that Appellant “was seen throwing a dark object out of the passenger

side window before displaying his hands.” N.T., 10/24/2014, at 56. Appellant

asked Officer George specifically whether he saw Appellant’s hands out the

driver’s side window. Officer George stated, “You never put your hands out

the window.” Id. at 57. It is this answer that is contradicted by the Report.

      Instantly, there is no question that a police incident report and the

Report are of the same quality.     Both reports were authored by the same

police officer shortly after this incident. Furthermore, both reports indicate

that Appellant’s hands were displayed, with the Report adding the hands were

“out” the window. Motion for New Trial, 1/17/2017, at Exhibit A. Thus, the


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Report and the police incident report were of similar, but not the same

character. Accordingly, we conclude the PCRA court erred in determining that

the Report was “merely cumulative or corroborative.” Trial Court Opinion,

7/19/2018, at 2.

      However, what is clear is that this one small point was not enough for a

jury to reach a different verdict on the resisting arrest charge. There is no

question that shortly after displaying his hands, whether inside or outside the

driver’s side window, Appellant stopped complying with orders from the

officers. See N.T., 10/22/2014, at 132 (testimony from Officer Taylor

explaining that officers were “trying to struggle and get [Appellant] out of the

vehicle” and the “whole time he was kicking, swinging, punching”).           In

addition, there was testimony that Appellant continued to struggle once he

was handcuffed. See N.T., 10/28/2014, at 9 (testimony from Detective Lydon

stating that when Appellant was being escorted to the police vehicle in

handcuffs, he was “actively pulling away and [] kind of kicking at the officers

as they were taking him”).

      Based on the foregoing, even if Appellant were able to present evidence

that his hands were outside the window, and the jury believed that evidence,

such evidence “is [not] of such a nature and character that a different verdict

will likely result if a new trial is granted.” Cobbs, 759 A.2d at 934.

Accordingly, we agree with the PCRA court that Appellant is not entitled to a

new trial based upon this after-discovered evidence.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/4/19




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