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Post Conviction Relief- A Witness Recants

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Recantation of a witness' statements from trial can provide relief.

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By Elisabeth K.H. Pasqualini, Post Conviction Relief Act Lawyer, Harrisburg, PA

True "after-discovered evidence," which can provide the basis for obtaining post conviction relief after the time for filing a Post Conviction Relief Act (PCRA) petition has expired, is evidence that was existent but undiscovered at the time of trial as opposed to recantation evidence which did not exist at trial.  (I had previously blogged about newly discovered evidence).  The focus of the newly discovered evidence exception to the one-year limitations period governing a petition for post conviction relief is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts.

Where a recantation by an eyewitness is not likely to result in a different verdict if a new trial were granted, it is insufficient to bring the defendant's petition for relief within the after-discovered-evidence exception. In addition, if the petitioner, with due diligence, could have discovered the facts represented by the recantation testimony, the recantation does not justify late filing under the exception. It is essential to understand that the focus is on the newly-discovered facts and no the source of those facts.

In one case, the record supported trial court's finding that petitioner could not have discovered the source of prosecution witness's recantation, or the recantation itself, through the exercise of due diligence, and thus his petition for post-conviction relief from his murder conviction was filed timely under after-discovered evidence exception. There, a witness testified consistently and unequivocally at trial that petitioner wielded a knife shortly before the murder and stated that he was going to kill someone and, as such, it was highly unlikely that defense counsel, without any supporting factual basis, could have compelled witness to change his testimony during cross-examination, by engaging in a fishing expedition as to why witness was lying. Com. v. Medina, 2014 PA Super 108, 92 A.3d 1210 (2014).

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