# Com. v. Poole, J.

> Superior Court of Pennsylvania · October 7, 2020

URL: https://www.frixlaw.com/law-library/cases/4574056

## Case

- **Court:** Superior Court of Pennsylvania
- **Decided:** October 7, 2020
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

J-S30026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN EARL POOLE, JR. :
:
Appellant : No. 1739 WDA 2019

Appeal from the PCRA Order Entered October 28, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001472-2017

BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 07, 2020

John Earl Poole, Jr. appeals the denial of his request for relief under the

Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We

affirm on the basis of the PCRA court’s opinion.

Poole pleaded guilty in March 2018 to third-degree murder and

robbery.1 The facts giving rise to these convictions are as follows:

On February 5, 2017, [Poole] and his friend, Robert
McCarthy, (hereinafter “the victim”) were drinking alcohol
and smoking crack in the victim’s apartment located at 539
East 9th Street in Erie, PA. At some point in the evening,
[Poole] stabbed the victim several times in the head and
neck, causing the victim’s demise. [Poole] also took the
victim’s wallet and a bottle of his prescription medication
and left the victim’s apartment. Several hours later, [Poole]
returned to the victim’s apartment, doused the victim with
an accelerant, and set his body on fire.
____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(c) and 3701(a)(1)(i), respectively.
J-S30026-20

Memorandum Opinion and Order, filed 10/28/19, at 1 (quoting Pa.R.A.P.

1925(a) Op., filed 10/16/18, at 1).

The trial court sentenced Poole to 20 to 40 years’ incarceration for the

murder conviction and imposed a consecutive term of 10 to 20 years in prison

for the robbery conviction. We affirmed the judgment of sentence.

Commonwealth v. Poole, No. 1034 WDA 2018, 2019 WL 1294466

(Pa.Super. filed Mar. 20, 2019) (unpublished memorandum).

Poole filed the instant timely PCRA petition in April 2019. The PCRA court

appointed counsel who filed an amended PCRA petition. Poole claimed that

new evidence entitled him to withdraw his guilty plea. The evidence at issue

was the alleged confession of another man, Regis Brown, that he had in fact

committed the murder. The PCRA court held an evidentiary hearing and denied

the petition. See Memorandum Op. and Order. This timely appeal followed.

The PCRA court and Poole satisfied the requirement of Pa.R.A.P. 1925.

Poole raises the following issue before this Court:

Whether the lower court committed legal error and abused
its discretion in failing to grant collateral relief in the nature
of the provision of leave to [Poole] to withdraw his guilty
pleas in that the predicate cited by the lower court for denial
of relief was the rejection of the confession of Regis Brown
to the subject crimes subsequent to the guilty pleas as not
credible should not be given any deference or affirmed by
this court as said evaluation of credibility of the Brown
confession was arbitrary and capricious in contravention of
relevant evidence from the series of evidentiary hearings
and reasonable inferences derivable therefrom?

Poole’s Br. at 2.

-2-
J-S30026-20

When reviewing the denial of PCRA relief, we determine “whether the

PCRA court’s determination is supported by evidence of record and whether it

is free of legal error.” Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super.

2018) (citation omitted).

A petitioner asserting an after-discovered evidence claim under the

PCRA must plead and prove 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. Cox, 146 A.3d 221, 228 (Pa. 2016) (quoting

Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004)).

Poole’s claim that after-discovered evidence entitles him to withdraw his

guilty plea is not clearly cognizable under the PCRA. Rather, the PCRA’s after-

discovered evidence provision affords relief from convictions and sentences

resulting from “[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(b)(2)(vi). Where a

defendant had pleaded guilty it is incongruous to say that new evidence would

“change the outcome of the trial if it had been introduced,” as there was no

trial. Under prior law, however, such claims were cognizable in post-conviction

proceedings. See Commonwealth v Peoples, 319 A.2d 679, 681 (Pa. 1974)

-3-
J-S30026-20

(construing the Post Conviction Hearing Act).2 We do not need to resolve this

question, however, because even if such claims are cognizable under the

PCRA, we agree with the PCRA court that Poole’s after-discovered evidence

claim fails on its own terms.

Here, the PCRA court stated that the parties agreed that Poole had

satisfied the first three factors of his after-discovered evidence claim.

Therefore the grant or denial of his petition depended upon the last factor:

whether the evidence would likely compel a different verdict. The court

concluded that Poole had failed to prove this factor because Brown’s statement

lacked credibility “due to significant inconsistencies and discrepancies between

Brown’s statement and the facts of the crime.” 1925(a) Op., filed 1/22/20, at

1, 7. The PCRA court summarized a portion of these discrepancies as follows:

[S]urveillance footage in which Brown’s vehicle was never
seen at or near the crime scene (yet [Poole’s] vehicle was
present at all times relevant to the murder and subsequent
arson); Brown’s vague and incorrect descriptions of the
victim’s home; Brown’s report of the suspected murder
weapon and number of stab wounds which was wholly
inconsistent with the autopsy report; the fact that Brown
reported that the victim fell to the floor upon being stabbed
yet the evidence indicated the victim had bled out on the
couch; Brown’s failure to mention the body was burned; and
the utter lack of physical evidence linking Brown to the
murder. Brown’s information seemed contrived and
conveniently obtained from published news reports, media

____________________________________________

2At least one panel of this Court has determined that such relief continues to
be available under the PCRA. See Commonwealth v. Perez, No. 1704 EDA
2018, 2019 WL 4338336, at *3 (Pa.Super. Sept. 12, 2019) (unpublished
memorandum).

-4-
J-S30026-20

coverage and, of course, his nearly three (3) months spent
with [Poole] in the Erie County Prison.

Id. at 8.

The court then referenced the overwhelming evidence against Poole,

and pointed out that Poole had voluntarily pleaded guilty to the murder.

[T]he victim’s wallet and pill bottle found in [Poole’s] vehicle
the morning after the murder, along with a towel containing
the victim’s blood found in [Poole’s] trunk; eyewitness
reports that [Poole] was the last person seen with the victim
the night of the murder; video surveillance depicting [Poole]
wearing one pair of clothes prior to the murder and a
different outfit subsequent; video surveillance of [Poole’]s
vehicle in close proximity to the victim’s home at the
approximate times of the murder and also the subsequent
arson; the absence of any identification of Brown in the
vicinity of [the victim’s] apartment and no presence of
Brown’s vehicle in the area; and [Poole’s] own statements
and behavior at the police station the morning following the
murder. Finally, and perhaps most importantly, the Court
considered [Poole’s] own knowing, voluntary, and intelligent
guilty plea to the murder and robbery of [the victim].

Id. at 8-9.

After a review of the parties’ briefs, the certified record, and the relevant

law, we find no error or abuse of discretion in the PCRA court’s analysis. We

thus affirm on the basis of the well-reasoned Memorandum Opinion and Order

of the Honorable John J. Trucilla. See Memorandum Op. and Order at 1-32.

Order affirmed.

-5-
J-S30026-20

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2020

-6-
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
OF ERIE COUNTY, PENNSYLVANIA
V. CRIMINAL DIVISION
JOHN EARL POOLE, JR., No. 1472 2017

MEMORANDUM OPINION AND ORDER

October 28, 2019. This matter is before this Court on John Earl Poole, Jr.'s (hereinafter "Petitioner")

Motion for Post Conviction Collateral Relief (hereinafter "PCRA") filed on
April 11, 2019, and
supplemented by Attorney William Hathaway on July 19, 2019. After an independent
review of the
record, consideration of Petitioner's pro se PCRA, the Supplemental PCRA
filed by PCRA counsel, the
Responses filed by the Commonwealth, the evidence presented at the evidentiary hearings
conducted on
September 30, 2019 and October 7, 2019, and the evidence presented at the status
conference held on
October 15, 2019, this Court finds that Petitioner has failed to prove a meritorious
claim under the Post
Conviction Relief Act (PCRA). Accordingly, Petitioner's request for relief is hereby
DENIED,

Factual and Procedural History
The relevant 'factual history was set forth in the undersigned's Opinion of October 16,
2018:
On February 5, 2017, Defendant and his friend, Robert McCarthy, (hereinafter "the
victim") were drinking alcohol and smoking crack in the victim's apartment located at
539 East 9th Street in Erie, PA. At some point in the. evening, Defendant stabbed the
victim several times in the head and neck, causing the victim's demise, Defendant
also took the victim's wallet and a bottle of his prescription medication and left the
victim's apartment. Several hours later, the Defendant returned to the victim's
apartment, doused the victim with an accelerant, and set his body on fire,

(1925(a) Opinion, October 16, 2018, 1),

1
Additionally, relevant to the proceedings sub juclice, the fottowing
facts were elicited during the
hearing on Petitioner's Omnibus Pretrial Motion on October 9,
2017. On February 5, 2017, through the
investigation conducted by the City of Erie Police Department ("EPD")
subsequent to the discovery of
the victim's body, Petitioner was identified as a person of
interest. (Notes of Testimony, Omnibus Pre -
Trial Motion, October 9, 2017, hereinafter "N.T,
October 9, 2017", 6). At approximately 10:00 a.m. on

February 6, 2017, Petitioner voluntarily drove himself to the EPD to
speak with the investigators about a

homicide. (N.T., October 9, 2017, 6-7). Petitioner was read his rights and
signed a Miranda waiver.
(N.T., October 9, 2017, 8). Petitioner also consented to a search of his vehicle, a search of his cell

phone, and a search of his jacket. (N.T., October 9, 2017, 14-21). The victim's
personal items were
found in Petitioner's' vehicle, including the victim's prescription pill bottle
and wallet. (NT., October 9,
2017, 92-93). Further, a towel with the victim's blood was also
recovered from Petitioner's vehicle.
(N.T., October 9, 2017, 93). Petitioner was the last person to see the
victim alive. (N.T., October 9,
2017, 95). Additionally, Petitioner's vehicle was seen outside the
victim's apartment on surveillance
video. (N.T., October 9, 2017, 95-97).

As a result, on June 7, 2017, Petitioner was charged by Criminal
Information with Criminal
Homicide/First Degree Murder, Possessing Instruments of Crime, Aggravated Assault,
seven counts of
Recklessly Endangering Another Person, Robbery, Receiving Stolen Property, two
counts of Arson,
Abuse of a Corpse, Theft by Unlawful Taking, and Tampering With Physical
Evidence.' The
Commonwealth and Petitioner reached a plea agreement where Petitioner would plead guilty to
Murder
of the Third Degree and Robbery.2 In exchange, the Commonwealth would nolle pros the
remaining
charges.

118 P.S. § 2501(a)/ 18 P.S. § 2502(a); 18 Pa.C.S.A. § 907(a); 18 Pa,C S.A. §
2702(a)(1); 18 Pa.C.S.A. § 2705; 18 Pa.C.S.A. §
3701(a)(1), 18 Pa.C.S.A. § 3295(a); 18 Pa,C.S,A. § 3301(a)(1) and (c)(2); 18 Pa.C.S.A. § 5510; 18
Pa.C.S.A. § 3291(a); 18
Pa.C.S.A. § 3301(c)(2); and 18 Pa.C.S.A. § 4910(1), respectively.
118 P.S. § 2501(a)! 18 P.S. § 2502(c) arid 18 Pa.C.S.A. §3701(a)(1)

2
On March 15, 2018, four days before jury selection was
set to commence, the Petitioner
appeared before this Court and entered negotiated guilty pleas to
the charges of Murder of the Third
Degree (reduced from Murder of the First Degree) and
Robbery. All remaining charges were thereby

withdrawn. At the time of the guilty plea, an extensive guilty plea colloquy was
conducted by this Court
wherein this Court determined Petitioner knowingly, voluntarily,
and intelligently entered his plea of
guilty to the charges set forth above. (See Plea and
Sentencing Transcript, March 15, 2018, hereinafter

"Tr., March 15, 2018"). Immediately following entry of the guilty plea, Petitioner waived a
pre -
sentence investigative report and elected to proceed with sentencing. See
42 Pa.C.S.A. § 9731. The
Court sentenced Petitioner at Count One, Murder of the Third Degree,
to a term of twenty (20) years to

forty (40) years of incarceration, and at Count Eleven, Robbery, to a
term of ten (10) years to twenty
(20) years of incarceration consecutive to Count One. (See
Sentencing Order, March 15, 2018).
On July 13, 2018, Petitioner filed a pro se "Notice of Appeal
(nunc pro tune)" [sic]. The Court
directed Petitioner t6 file a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
On October 3, 2018; Counsel for Petitioner filed a Statement of Intent to File Anders Brief as well as an
Application to Withdraw as Counsel. The Court issued its 1925(a) Opinion on
October 16, 2018.
On February 22, 2019, while the direct appeal was still pending with
the Pennsylvania Superior
Court, Petitioner filed a pro se PCRA in which he raised the exact issues as he
has raised in the PCRA
sub judice. By Order of March 18, 2019, the Court dismissed the February 22, 2019
PCRA as a
premature filing and outside of the Court's jurisdiction. (See Memorandum
Opinion and Order, March
18, 2019).

On March 20, 2019, the Superior Court of Pennsylvania affirmed Petitioner's judgment
of
sentence and granted the Application to Withdraw as Counsel. Commonwealth v. Poole, No. 1034 WDA
2018 (Pa. Super. 2019).

3
Subsequently, Petitioner filed the instant pm se Motion for Post
Conviction Collateral Relief on
April 11, 2019. Attorney William Hathaway was appointed by this
Court on April 24, 2019. On May
21, 2019, Attorney Hathaway filed a Motion for
Extension of Time, requesting sixty days to file a
Supplement to the PCRA. This extension request was granted by Order of
May 23, 2019. On July 19,
2019, Attorney Hathaway filed a Supplement to Motion for Post
Conviction Collateral Relief
(hereinafter "PCRA"). At the Court's direction, the Commonwealth filed a
Response to the PCRA on
August 8, 2019. After reviewing the filings, the Court directed the Commonwealth to file
a
Supplemental Response for further clarification of some key evidentiary issues.
The Commonwealth
filed the Supplemental Response on September 11, 2019.

Due to the matters raised in the PCRA, the Court concluded the claim set forth
by the Petitioner
in the PCRA and the Responses received from the
Commonwealth ". . raised material issues of fact"
requiring an evidentiary hearing pursuant to Pa,R,Crim.P. 908. Thereafter, the Court conducted an
evidentiary hearing commencing on September 30, 2019 and continued on October
7, 2019, to consider

the merits of Petitioner's claim, Prior to rendering a decision, the Court scheduled a final status

conference on October 15, 2019, to provide counsel the opportunity to supplement
the record with
additional evidence or argument. At this hearing, the Commonwealth
submitted Commonwealth
Exhibits 4A, 45, 4C. and 5, and rested. Petitioner offered no further evidence or testimony.
Therefore,
the record was closed.

4
Discussion
I. Relevant Legal Principles

In the PCRA. Petitioner claims, inter lia,
he is entitled to withdraw his guilty plea
pursuant to
42 Par.S.A, §9543(a)(2)(vi), which provides relief where a
petitioner can prove "Mlle 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). Petitioner
alleges a number of claims in his PCRA
seeking the withdrawal of his guilty plea
couched as after -
discovered evidence. Dissecting the claims, it
becomes clear the only issue of legal
significance, and
agreed to by the pardes, is whether the
confession of an inmate by the name of Regis Brown
is after-
discovered evidence that would justify the
withdrawal of Petitioner's guilty plea? The
Commonwealth's Response to the PCRA filed on August 8,
2019 posits Brown's alleged confession had
no indicia of reliability and
Petitioner's guilty plea was not unlawfully induced,

2 In his pro se PCRA, Petitioner attached "Exhibit
C", a copy of a statement allegedly signed by an
Corder, regarding verbal statements allegedly made by inmate named Alexander
Brown as well as reference to a letter by Brown and
Corder. Additionally, Corder sent an ex parte intercepted by
letter to the Court which was forwarded to counsel, and
the District Attorney's office. However, neither sent another letter to
"Exhibit C," the intercepted letter, nor the letters to the
Attorney's office were admitted into evidence. Court or the District
Subsequent to the pro se PCRA and as discussed infra, at the
evidentiary hearing testimony was provided directly by the
Pennsylvania State Troopers who interviewed Brown, The Court
was further provided with a copy of the actual
the interview between the Troopers and Brown, recording of
marked as Courtroom Exhibit 2, 2A. Due to the
evidence submitted on behalf of Petitioner and the significant additional
Commonwealth, as well as both parties' informal confirmation that
intended to interview or present Corder as a witness, the neither
Court can glean no relevance to Corder's involvement
being the catalyst for the filing of the PCRA. Therefore, other than
the Court will not rely on the statement by Corder
thepro se PCRA in its analysis and instead will rely on the submitted with
evidence properly of record.

5
A. Alleged Brady Violation

As a preliminary matter, in the Supplement to PCRA
Petitioner raised a claim that the
Commonwealth had engaged in a Brady violation in failing to disclose
Brown's confession. This Court
notes the United States Supreme Court has held the due process
requirement of Brady does not extend to
the postconviction context, as a convicted criminal
defendant ". . . does not have the same liberty
interests as a free man." District Attorney's Office for Third Judicial District v. Osborne, 557 U.S. 52,
68 (2009). Rather, the inquiry of a claim of after -discovered evidence after conviction and sentencing is
governed by the state procedures for postconviction relief rather than the
Brady framework. Id. at 69.
Consequently, Petitioner's allegation of a Brady violation is not a matter for this
PCRA Petition or this
Court's consideration. However, out of an abundance of caution, this Court
ordered the Commonwealth
to specifically address the claim by identifying what
information, if any, it had in its possession
regarding Regis Brown's statements and his admission of killing Robert
McCarthy. (See Order, August
27, 2019). The Court also sought this information for use in
addressing the issue of after-discovered
evidence.

By Supplemental Response filed September 11, 2019, the
Commonwealth affirmed it had
received notice of the alleged confession by Regis Brown on or about
September 21, 2018, more than
six months after Petitioner's entry of a guilty plea on March 15,
2018. (See Commonwealth's

Supplemental Response to PCRA, September 11, 2019). At the evidentiary hearing on
September 30,
2019, Petitioner conceded and agreed there was no basis for a Brady claim
upon receipt of the
Commonwealth's averment. Petitioner's claim of an alleged Brady violation is therefore
dismissed as
both moot and without legal relevance to this current PCRA.

6
B. PCRA Claim of After-Discovered Evidence

There are several avenues available to
a petitioner to seek relief under the
provisions of the
PCRA. However, Petitioner asserts
essentially only one basis for relief, that being his
claim of "after -
discovered evidence." (See Supplement to
Motion for PCRA, July 19, 2019). The Court,
as well as
PCRA counsel and the Commonwealth, agree
that only assessment and analysis of the "after
-discovered
evidence" subsection of the PCRA is relevant to
the case sub judice.

The Post -Conviction Relief Act, 42
Pa.C.S.A. § 9541, et seq Ipirovides for an action by which
persons convicted of crimes they did not
commit and persons serving illegal sentences
may obtain
collateral relief," 42 Pa,C.S.A. § 9542, Pursuant to 42
Pa.C.S.A. § 9543(a)(2)(iv), a Petitioner must
".. plead and prove by a preponderance of the
.
evidence (2) That the conviction or sentence resulted
. .

from . (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,"
42
Pa.C.S.A. § 9543(a)(2)(iv). Claims brought
under this subsection are commonly termed
"after -
discovered evidence claims" See, e.g.,
Commonwealth v. Johnson, 179 A,3d 1105, 1123 (Pa.
Super.
2018). In order
Petitioner to be eligible for post-conviction collateral
o
relief based upon after -
discovered evidence, he must prove: "(I) 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."
Johnson at 1123 (citing Commonwealth v. Cox, 146 A.3d
221, 228 (2016)).
All parties and the Court agree that the first
three prongs of what constitutes after -discovered
evidence have been satisfied in this case. It is only
the fourth factor - whether the after -discovered
evidence would likely compel a different verdict - that is
to be analyzed by the Court. In considering

7
"whether the evidence would likely compel a different verdict," the court should consider ". . the
integrity of the alleged after -discovered evidence, the motive of those offering, the
evidence, and the
overall strength of the evidence supporting the conviction." Commonwealth v, Padillas, 997 A.2d 356,
365 (Pa.Super. 2010) (citations omitted).

Thereby, this is the legal framework the Court will confine its analysis to. The Court
must
consider whether the confession of Regis Brown is sufficient after -discovered evidence
that would likely
compel a different verdict. However, in this case, Petitioner entered a knowing, voluntary and
intelligent guilty plea. Therefore, in the case sub judice, the issue is narrowed to whether application
of
the after -discovered evidence rule to the voluntariness of a guilty plea would compel this
Court to allow
Petitioner to withdraw his plea. For the reasons set forth infra, Petitioner's request for
relief is DENIED
and his guilty plea and sentence are again upheld.

C. Withdrawal of a Guilty Plea

Generally, an appellant who has pleaded guilty "waives all claims and defenses other than
those
sounding in the jurisdiction of the court, the validity of the plea, and what has been termed
the 'legality'
of the sentence imposed." Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa.Super. 2017). A post -

sentence guilty plea may not be withdrawn absent "... a showing of prejudice on the order of manifest

injustice." Commonwealth v. Starr, 301 A.2d 592, 595 (Pa. 1973). "Manifest injustice may be

established if the plea was not tendered knowingly, intelligently, and voluntarily." Commonwealth v.

Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (citations omitted).

8
Pennsylvania Rule of Criminal Procedure Rule 590 mandates that pleas
be taken in open court
and that the court conduct a colloquy on the
record to ascertain whether a defendant is aware of his

rights and the consequences of the plea. See Pa.R.Crim.P. 590(A)(1),(3); Pa.R.Crim.P. 590(B)(2).

"[W]here the record clearly demonstrates that a valid guilty plea
colloquy was conducted, during which
it became evident that the defendant understood the
nature of the charges against him, the voluntariness

of the plea is established." Commonwealth V. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (citing

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)); see also,
Pa.R.Crim.P. 590;
Connnonwealth v. Kpou, 153 A.3d 1020, 1024 (Pa. Super. 2016). "A person
who elects to plead guilty is
bound by the statements he makes in open court while under
oath and he may not later assert grounds
for withdrawing the plea which contradict the statements he made
at his plea colloquy." Commonwealth
v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007) (citing
Commonwealth v. Pollard, 832 A.2d 517, 524
(Pa. Super. 2003)). 'A criminal defendant who elects to plead guilty has a duty to answer questions
truthfully." /a'.

However, the Court is fully cognizant of the
Pennsylvania Supreme Court's holding in
Commonwealth v Peoples, 319 A.2d 679 (Pa. 1974), wherein the high Court
determined "[ajny after -
discovered evidence which would justify a new trial.... also entitle[s]
a defendant to withdraw his guilty
plea.' Commonwealth v. Peoples at 681. Despite the fact Peoples was decided under the Post

Conviction Hearing Act (PCHA), the statutory predecessor of the PCRA,
the holding continues to be
applied in the context of after -discovered evidence claims. See, e.g.,
Commonwealth v. Heastet; supra,
at n.64; see also, Commonwealth v. Perez, 2019 WI. 4338336 (Pa.Super. September 12, 2019) (a non-

precedential memorandum cited for its "persuasive value" pursuant to 210 Pa.
Code § 65.37).

4 Procedurally, Heaster involved a direct appeal and request for a post-sentence
motion to withdraw a guilty plea based on
after-discovered evidence pursuant to Pa.Crim.R.P. 720; however, the
Pennsylvania Superior Court relied on Commonwealth
v. Peoples in analyzing the claim.

9
Peoples and the more recent Heaster and the line of cases that
follow therefore suggest that the
after -discovered evidence analysis applies to guilty pleas.
However, the Courts go no further in these
holdings. Inevitably, in an after-discovered evidence assessment
done in the context of a guilty plea,
when considering whether the after -discovered evidence would
compel a different result, it is fair for a
reviewing court to consider the underlying plea for the "overall
strength of evidence supporting
conviction," See Commonwealth v. Padillas, supra at 365. Consequently, this would warrant a
review
of the underlying knowledge, voluntariness, and intelligence of the
guilty plea.
Instantly, Petitioner's guilty plea was knowing, voluntary, and
intelligent. (See Tr., March 15,
2018, 3-9; 21-33; see also Statement of Understanding of Rights Prior to
Guilty/No Contest Plea, March
15, 2018). Petitioner was found to be mentally competent, appropriately
responsive, articulate, and
capable of entering his plea. (See Tr., March 15, 2018, 7-9). The
plea agreement was reviewed on the
record and Petitioner acknowledged he understood his rights and
the rights he would be giving up by
entry of the plea. (See Tr., March 15, 2018, 18-22; 26).
Petitioner confirmed he did not have any
questions about the plea deal and verified he had knowingly and
voluntarily signed the Statement of
Understanding of Rights Prior to Guilty/No Contest Plea before the Court.
(See Tr., March 15, 2018, 20-
22; 26). Petitioner affirmed in his colloquy that no one had forced
or threatened him to enter the plea,
that lie was satisfied with plea counsel, and he entered the plea
voluntarily, (See Tr., March 15, 2018, 21-
33). The Court found Petitioner's guilty pleas to Count One,
Murder of the Third Degree, and Count
Eleven, Robbery, were knowing, voluntary, and intelligent as well as supported by
a legal and factual

basis. (See Tr., March 15, 2018, 22-25).

The record indicates the Court underwent an extensive plea colloquy with
Petitioner to ensure his
understanding of his Constitutional rights and protections and the consequences of his
admission. He
was not forced, coerced or promised anything other than the terms of the
plea agreement. His

10
statements to the Court were knowing, voluntary, and intelligently made and supported the factual and

legal basis for the plea. The Information setting forth the charges with the legal definitions and
elements
and the factors supporting these charges were read and explained to Petitioner. (See Tr., March 15,
2018,

23-25). He acknowledged his understanding of these elements and admitted to committing these
crimes
under oath on the record. Id.

He cannot now claim he gave false statements regarding his culpability for the murder of Mr.

McCarthy because he sees a convenient opportunity. It is well -established that ". . post -sentence
claims of innocence do not demonstrate manifest injustice." Kpou, supra, at 1024. In considering

Petitioner's PCRA claim, it is difficult for this Court to overcome the fact that Petitioner gave a knowing,

voluntary, and intelligent guilty plea. Petitioner's admission and plea is another important, if not the
most important, factor impacting the "overall strength of the evidence supporting the conviction." See,

Commonwealth v. Padillas, supra at 365.

Under this framework and the law and facts set forth below, the Court must continue its analysis

of Brown's statement as after -discovered evidence to determine the integrity of the statement, the motive

of Brown and Petitioner, and the overall strength of the Commonwealth's evidence supporting

Petitioner's conviction. See Commonwealth v. Padillas, supra at 365.

11
D. Analysis of Petitioner's After-Discovered Evidence:
Regis Brown's Confession
At the start of the evidentiary hearing,
both parties agreed with the Court that the appropriate

assessment was an after -discovered evidence analysis
pursuant to 42 Pa.C.S.A. § 9543(a)(2)(iv).
Further, the parties stipulated prongs one, two, and
three were met regarding the after -discovered
evidence claim. Therefore, the only issue remaining
before the Court is whether Petitioner can prove by
a preponderance of the evidence that the
after -discovered evidence, to -wit, Brown's alleged
confession,
would "likely compel a different verdict."
Commonwealth v. Johnson, supra, at 1123; Commonwealth v.

Paddlers, supra, at 365; see also, 42 Pa.C.S.A. § 9543(a)(2)(iv). Further, the credibility of such evidence
is fully within the purview of the PCRA Court. See,
e.g., Commonwealth v. Small, 189 A.3d 961, 978
(Pa. 2018); Commonwealth Treiber, 121 Aid
v. 435, 444 (Pa. 2015); Commonwealth v. Johnson, 966
A.2d 523, 537 (Pa. 2009); Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa. 2004); Commonwealth v.

Williams, 732 A.2d 1167 (Pa. 1999); Commonwealth v. Lehr, 583 A.2d 1234 (Pa, Super. 1990).

"Matters of credibility are vested in the sound discretion of . .. the PCRA court," Commonwealth
v Lehr supra at 1236. In fact, it is the express duty
of the PCRA court to "render its own, independent
findings of fact and conclusions of law concerning . . credibility and the impact, if any, upon the truth-

determining process which can be discerned from such
testimony." Commonwealth v. Williams, supra,
at 1180-81; see also, Commonwealth v Small, supra, 776,
-Indeed, one of the primary reasons PCRA
hearings are held in the first place is so that credibility determinations
can be made; otherwise, issues of
material fact could be decided on pleadings and affidavits alone."
Commonwealth v. Johnson, supra, at
539.

In assessing the credibility of testimony and evidence to determine if Petitioner has met his
burden of proof by a preponderance of the evidence, the Court will now
undergo an intensive review of
the evidentiary hearing record.

12
1. Testimony of the Troopers

On September 30, 2019, Petitioner presented the testimony of
now -retired Trooper Joseph
Vascetti and Trooper Justin Werner of the Pennsylvania State
Police ("PSP"). In September 2018, both
Troopers were stationed at the New Castle barracks in Lawrence
County, Pennsylvania and working in
the criminal investigation unit. Trooper Vascetti had been
investigating the 1988 cold case homicide of
Bryce Tompkins in Lawrence County, Pennsylvania. Trooper
Vascetti testified that in or about March
2018, Regis Brown, previously known as Rex Knight,
confessed to murdering Tompkins. As a follow-
up to the Tompkins homicide investigation, Troopers
Vascetti and Werner came to Erie, Pennsylvania on

September 21, 2018 to conduct, another interview with Brown, who was
incarcerated at the Erie County
Prison. During the recorded interview (admitted as Courtroom
Exhibit 2, 2A), Troopers Vascetti and
Werner asked Brown about the murder of Robert McCarthy.5 In the interview, Brown confessed to
murdering Robert McCarthy and stated that he did it because
McCarthy had reneged on an agreement
involving drugs. It is this confession that is at the center of the
PCRA set forth as after-discovered
evidence.

In the statement, Brown claimed on February 6, 2017,
he had driven his green 2008 Jeep Patriot

to Mr. McCarthy's apartment to physically confront Mr. McCarthy
about the agreement. Brown alleged
the two parties had agreed to exchange cocaine for Vicodin pills.
Brown stated he gave Mr. McCarthy
the pills but Mt McCarthy had not given Brown the cocaine in
return. After repeated attempts to
collect, Brown stated he went to Mr. McCarthy's residence to get the
cocaine or money for the pills.
When Brown arrived at the apartment and Mr. McCarthy gave him
another excuse, Brown stated he

5 Trooper Vascetti testified he
had received a request from Trooper Susan Edelhman of the PSP in. Erie to
Brown about the McCarthy murder, Trooper Eclelfunan was informed by Major specifically ask.
Gat)/ Seymour from the Erie County Prison
that Brown had written a letter wherein Brown was taking responsibility for the
murder of Robert McCarthy and Brown was
concerned that "Big John" had "taken the case." All parties agree that "Big John" is a
reference to Petitioner, John Poole,
who is a physically large man at approximately 6'5" and 340 lbs. (See Sent. Tr.,
March 15, 2018, 45). In other words, the
reference "had taken the case" meant Petitioner had taken responsibility for the murder and
was serving a sentence for it,

13
pulled out his 6 -inch hunting knife and stabbed Mr.
McCarthy three times in the neck. Brown noted Mt
McCarthy fell to the floor and Brown had stood over top
of him and left without taking anything.
Although evidence and reports indicate Mt McCarthy's upper torso
was burned, Brown did not make
any statements that he burned the body. Trooper Vescetti
testified Brown "felt bad" Petitioner was
charged in the McCarthy murder and wanted to "clear things up,"
Immediately after the interview the
Troopers forwarded the information and recording up the PSP
chain of command per standard operating
procedures. The following day, the PSP notified the City of Erie
Police Department ("EPD") which in
turn notified the Erie County District Attorney's office.

Both Trooper Vascetti and Trooper Werner testified that Brown was
cooperative and answered all
of their questions during the interview. Both Troopers further opined
that they felt Brown's confession
was credible. However, and important to this Court's
assessment, both Troopers conceded they were in
no way involved with the Robert McCarthy homicide
investigation and did not have the benefit of
personal knowledge of the details of the McCarthy murder. The
Troopers had not read any reports
regarding the EPD's investigation and were not armed with any
knowledge of the McCarthy murder
prior to the interview. Additionally, the Troopers were unaware of
whether Petitioner and Brown were
housed together at the Erie County Prison in March 2018 through May
2018. Therefore, Brown could
not be confronted with the facts of Mr. McCarthy's murder and
Brown's statement went unverified and
simply accepted by the Troopers. The Troopers had no further follow-up regarding the McCarthy

murder with Brown or any officials with Erie County.

At the conclusion of the Troopers' testimony, Petitioner rested.

14
2. Testimony of the Commonwealth

The Commonwealth presented the testimony of Erie County
Assistant District Attorney Jeremy
Lightner ("ADA Lightner"). ADA Lightner was the co -prosecutor for
the McCarthy murder case, and as
such was intimately familiar with the evidence at the
crime scene, witness statements, the autopsy
report, the evidence recovered from Petitioner's vehicle, the
surveillance footage around Mr. McCarthy's
residence and neighborhood, and all other aspects of the investigation.6

ADA Lightner testified that upon receipt of the infotmation from
the PSP regarding Brown's
alleged confession, the Erie County District Attorney's Office
("DA") investigated further. ADA
Lightner listened to 'the tape of Brown's statement to Troopers Vascetti
and Werner. ADA Lightner
testified he found Brown's statement contrary to the facts and evidence
of this case.
ADA Lightner's testimony included references to discrepancies
in Brown's statement to the
Troopers. ADA Lightner's testimony revealed he was personally
responsible for reviewing the video
surveillance evidence obtained of Mr. McCarthy's neighborhood in and
around the time of the murder
(February 4 and 5, 2017). ADA Lightner testified that Brown's vehicle, a
green Jeep Patriot, was never
seen on the surveillance footage. Conversely, Petitioner's vehicle,
a Dodge Charger, was viewed several

times. In fact, not only did Petitioner's vehicle appear on the
video, but it was seen parked in the
vicinity of Mr. McCarthy's apartment at 539 E. 9th Street at
all times relevant to the murder and

subsequent arson. As ADA Lightner explained, the fire had been called in by other
tenants in Mr.
McCarthy's building at approximately 4:00 a.m. on February 5, 2017, at which time
Mr. McCarthy's

charred body was discovered. ADA Lightner testified a timeline was
reconstructed to determine what
happened to Mr. McCarthy by utilizing the autopsy report and video surveillance.
He stated the autopsy
report indicated Mr. McCarthy had been deceased at the time his body was
ignited, and the physical

6The other co -prosecutor in this case, former Assistant District
Attorney Robert Marion, has since left the Erie County
District Attorney's Office.

15
evidence regarding the cause and manner of death, including the blood loss, indicated he had
died hours
prior to the arson. ADA Lightner described that the primary surveillance footage near Mr. McCarthy's

residence revealed Petitioner's Dodge Charger was the last vehicle parked in Mr. McCarthy's driveway

on the evening of February 4, 2017. He testified Petitioner's vehicle was observed on the video driving

by the victim's residence multiple times later at night on February 4, 2017 and through
the early
morning hours of February 5, 2017. ADA Lightner explained footage from a second surveillance

camera in the neighborhood showed the Dodge Charger parked nearby Mr. McCarthy's residence around

4:00 a.m. on February 5, 2017, shortly before the report of the fire at 539 E. 96 Street was called in. He

testified the fire at 539 E. 9th Street became visible on the primary surveillance video around the same

time the Dodge Charger is seen leaving the area on the second surveillance video at approximately 4:00

a.m. ADA Lightner went on to conclude that based on the autopsy report, and the video footage, as well

as witness statements placing Petitioner with Mr. McCarthy on the evening of February 4, 2017, the
Commonwealth's theory was that Petitioner murdered Mr. McCarthy at approximately 7:00 p.m. on

February 4, 2017. ADA Lightner continued and stated that because of the presence of Petitioner's

vehicle at the scene of the crime, and the later discovered evidence of personal items of the victim in

Petitioner's vehicle, the Commonwealth believed Petitioner returned to the victim's residence at

approximately 4:00 a.m. to burn the body in an attempt to conceal his involvement in the murder and

robbery.

ADA Lightner testified that additional surveillance videos obtained from stores in the area

indicate Petitioner changed clothes after the murder and these clothes were never recovered.

The autopsy report, which ADA Lightner reviewed with the medical examiner, Dr. Vey, indicated

Mt McCarthy had suffered nine stab wounds and the wounds were more consistent with an "unusual

sharp object." ADA Lightner testified that a blue, plastic, sharp -tipped object which appeared to have

16
been broken off a larger object was found in the pool of
Mr. McCarthy's blood on the couch. ADA

Lightner testified that Dr. Vey would have stated this item was
consistent with the type of weapon used
to murder Mr. McCarthy. This is in complete conflict with Brown's testimony that he stabbed
Mr,
McCarthy three times with a 6 -inch knife,

ADA Lightner testified that the physical evidence, including a large
amount of blood on Mr.
McCarthy's couch that had soaked through the couch and the lack of blood on the
floor near. Mr.
McCarthy's charred ,body (See Commonwealth Exhibit 5) indicated Mr. McCarthy was
killed on the
couch and then burned on the floor. This also refutes Brown's statement that he
stabbed Mr. McCarthy
three times with the victim falling to the floor, and no statement by Brown
regarding Mr. McCarthy on
the couch or of the burning of Mr. McCarthy's body.

In his testimony regarding the strength of the Commonwealth's case against Petitioner, ADA
Lightner noted that during the police interview the day following the
murder, Petitioner made statements
that he had "screwed up" and "he would never see his kids again."
During the interview, Petitioner
signed a consent for the detectives to search his vehicle, the Dodge Charger. Fle
told the detectives they
would find Mr. McCarthy's wallet and a bottle of prescription pills that
belonged to Mr. McCarthy in the
center console of the vehicle. ADA Lightner testified that Petitioner was
observed on video surveillance
from the Wine and Spirits store at approximately 7:15 p.m. on February 4, 2017,
which according to the
Commonwealth's theory was shortly after Petitioner had killed Mr. McCarthy. In the trunk of the

vehicle the detectives found. a Wine and Spirits bag with a receipt dated February 4,
2017 at 7:15 p.m.
Inside the bag, the detectives found Lysol spray, wipes, and a bloody towel.
Subsequent testing
confirmed the blood on the towel belonged to Mr. McCarthy.

ADA Lightner testified that the most notable detail of the McCarthy murder aside from the nine

stab wounds was the fact that the body had been burned. However, Brown never
mentioned burning Mr.

17
McCarthy in his statement. ADA Lightner testified that Brown's
confession did not contain any detail
not made public.

ADA Lightner also testified that the statement by Brown was
eerily similar to a statement
relayed to the DA's office by an inmate named Faysal
Muhammad. Muhammad, an acquaintance of
Petitioner, contacted the DA's office to relay that another inmate
named Tyree Salter had committed the
murder of Robert McCarthy. ADA Lightner stated that further investigation into this claim
was
unsubstantiated and without merit. Based on this, ADALightner drew a parallel
to this case and viewed
Brown's confession as another contrived attempt by Petitioner to avoid
the consequences of his heinous
act. As this opinion unfolds and the record is reviewed, the
Court agrees.

ADA Lightner testified that throughout the investigation there
was no evidence linking any
individual other than Petitioner to the crimes. ADA Lightner reiterated
that there was "not one iota of
evidence" linking Regis Brown to Mr. McCarthy's murder and he
thereby felt Brown's statement was
unbelievable and hardly exculpatory.

To further support their position that Brown's confession
was fabricated and bore no credible or

evidentiary value, the Commonwealth called Detective Matthew Berarducci
of the City of Erie Police
Department. Detective Berarducci was the lead investigator assigned to the
McCarthy homicide along
with Detective Sean Bogart. In fact, Detective Berarducci attended Mr.
McCarthy's autopsy. Detective
Berarducci elaborated on the extensive physical evidence connecting
Petitioner to Mr. McCarthy's
murder, His direct involvement with the McCarthy homicide armed him, with the
facts and details of the

murder. As further emphasized by Detective Berarducci, all evidence pointed to
Petitioner.

Detective Berarducci testified that after listening to Brown's statement, he also did not
find it
credible. He explained there was no physical evidence, eyewitness testimony, or
surveillance footage
linking Brown to the crime scene, When questioned about where the evidence
indicated Mr. McCarthy

18
had died, Detective Berarducci testified it was believed to be on
the blood-soaked couch. (See

Commonwealth Exhibit 5). This again refuted Brown's confession. Detective
Berarducci referenced the
plastic, sharp tip found in Mr. McCarthy's blood as being consistent
with the weapon used to stab Mr.
McCarthy. This was supported by Dr: Vey and his autopsy report and
observations.
Throughout the entirety of the investigation, Detective Berarducci had never
found any
connection between Brown and Mr. McCarthy. He testified there was no
evidence that Brown had
murdered Mr. McCarthy. Detective Berarducci found no associations between
Robert McCarthy and
Brown. Brown was not known by Mr. McCarthy's family members or
associates, Detective Berarducci
confirmed that neither the name Regis Brown nor "Rex Knight"
ever came up during the initial

investigation into the McCarthy murder or any time after. Brown was never
mentioned as a possible
person of interest and had no known connection to Mr. McCarthy.

To further support this testimony, Detective Berarducci noted
that Brown was not a known drug
dealer in the area. He explained the area where Mr. McCarthy's
residence is located is a high crime area
with a high police presence where the police routinely and
proactively run license plates. A search of
police records by Detective Berarducci confirmed Brown's license
plate never appeared on police scans
in the area, This also reinforces ADA Lightner's testimony
that his review of the video surveillance
footage of Robert McCarthy's residence and neighborhood never once
revealed Brown's Jeep Patriot
which he claimed to have driven there the night of the murder.

Further, Detective Berarducci testified that based on Brown's claim that
he called Robert
McCarthy on February 4, 2017, he reviewed Mr. McCarthy's phone records. The
records did not contain
any numbers connected to Brown,

As follow-up to listening to Brown's taped statement, Detective
Berarducci stated he and
Detective Bogart made several attempts to interview Brown, but were unsuccessful because
Brown had

19
moved several times within the state prison system. Finally, on September 19, 2019, Detective

Berarducci and Detective Bogart located Brown and arranged for a
face-to-face interview with him.
However, before questioning even commenced, Brown refused to
speak with them, citing "legal and
"health issues." No further interview was attempted.

Finally, to demonstrate that Petitioner and Brown had ample
opportunity to manufacture this
scenario, the Commonwealth called Major Gary Seymour, Deputy
Warden of Security and Safety at the
Erie County Prison, Deputy Seymour is the custodian of
records at the prison and authenticated the logs
regarding the prison cell assignments of Petitioner and Brown
between March 2018 through May 2018
(admitted as Commonwealth Exhibits 2 and 3).

Major Seymour explained the configuration of the Erie County
Prison and described how the
prison is divided into "pods" which can hold up to 94 inmates
each. Each pod is then subdivided into
four smaller groups of approximately 24 inmates ("A", "B",
"C", and "D") to limit the number of
inmates out of their cells at one time. When they are out of their
cells, inmates have unmonitored and
face-to-face access to each other in the day room and/or the gym.
Major Seymour confirmed Petitioner
and Brown were housed together at the Erie County Prison in pod
"F -B" and sleeping only three cells

apart from at least March 27, 2018 to May 15, 2018. (See also, Commonwealth Exhibit 2 and
Commonwealth Exhibit 3). Consequently, Petitioner was provided nearly unrestricted access and

opportunity to share facts of the McCarthy homicide with Brown.

At the conclusion of Major Seymour's testimony, the Commonwealth
rested.

20
3. Independent Credibility Determination by the Court

Pursuant to the duty that a PCRA Court "render its own, independent findings
of fact and
conclusions of law concerning [the] credibility and the impact, if any, upon the
truth -determining
process which can be discerned from such testimony," this Court
has undertaken an exhaustive and
independent review of the after -discovered evidence and the entire record in
making its determination
that Brown's statement is not credible and therefore Petitioner is not
entitled to relief. See,

Commonwealth v. Williams, supra, at 1180-81; see also, Commonwealth It Small, supra, 978.

At the close of the hearing on October 7, 2019, the Court directed the
Commonwealth to provide
the Court with a copy of the audio recording of Brown's alleged confession
(Courtroom Exhibit 2, 2A),
a copy of the investigative report (Courtroom Exhibit 3) and the autopsy
report (Courtroom Exhibit 3A).
The Court subsequently listened to Brown's recorded statement and reviewed the
investigative report
and autopsy report.

The Court scheduled a status conference for October 15, 2019 to allow the
parties to further
supplement the record. The Commonwealth supplemented the record with pictures of the
exterior of the
McCarthy residence at 539 E. 91h Street (See Commonwealth Exhibits 4A, 4B, and 4C) and a picture of

the interior of the crime scene (See Commonwealth Exhibit 5). Commonwealth
Exhibit 5 displayed the
blood-soaked couch and the victim's body lying on the floor next to the couch. It also showed
the

victim's charred upper torso.

After reviewing the testimony of record, the exhibits, the statements and arguments of counsel,

and the relevant and applicable caselaw, the Court does not find the after -discovered
evidence of

Brown's confession credible or of sufficient reliability to justify the withdrawal of Petitioner's guilty

plea. Quite simply, it does not bear an indicia of reliability or the ring of truth necessary to carry the
day
for satisfying the low threshold burden of preponderance of the evidence. Cognizant of its'duty to assess

21
the credibility of evidence and whether the Petitioner's burden of
preponderance of the evidence has
been satisfied, the Court will undergo a review of the evidence of record.

First, the Court determines that ADA Lightner, Detective
Berarducci, and Major Seymour
provided credible evidence which was independently corroborated by other
evidence and the exhibits of
record.

Second, while the Court finds the testimony of Trooper Vaseetti and
Trooper Werner was
certainly credible as to their belief about the veracity of the alleged confession,
the Troopers simply did
not have sufficient details about Mt McCarthy's murder to challenge
Brown's statements. The Troopers
were from Lawrence County and had never worked in Erie County. Trooper
Vascetti had been called
upon to question Brown because of the rapport they had built working on the
Lawrence County murder.
Trooper Werner had never even met Brown before. Neither Trooper was
involved in the investigation of
the McCarthy murder, nor did they participate in any further investigation
subsequent to Brown's
statements.

Third, after review of Courtroom Exhibit 2, 2A, the audio recording, the Court
notes while
Brown's statement touched upon general details, such as the approximate location
of Mr. McCarthy's
home and Mr. McCarthy's physical description, these are details that could have
easily been learned
through public sources or interaction with Petitioner. Crucially, Brown failed to provide
distinguishing
details that he would have known if he was the actual perpetrator of the crime. Brown
was unable to
provide these crucial facts because he did not murder Robert McCarthy - Petitioner did.

The notable lack of credibility of Brown's confession is set forth as follows:

1. Brown indicated he was familiar with Robert McCarthy and had "dealt with him a couple

times and he seemed solid." (See Courtroom Exhibit 2, 2A). However, Brown's name never came up

during the investigation into Mr. McCarthy's homicide. Detective Berarducci testified there was no

22
evidence that Brown was a known drug dealer in the area or
even an acquaintance of Robert McCarthy.
Brown's license plate had never appeared on scans in the area,
which would have been expected if
Brown was dealing drugs in the area. There were no
witnesses placing Brown at the crime scene,
whereas Petitioner was identified by
Robert McCarthy's neighbor, Kim Barnes, as the last person
seen
with Mr. McCarthy on the evening of February 4,
2017. (See also, Commonwealth Exhibit 1).
ADA
Lightner's testimony further corroborated Detective
Berarducci's testimony regarding the lack of a
connection between Mr. McCarthy and Brown, as his
review of the video surveillance of Robert
McCarthy's residence and neighborhood never captured
Brown's vehicle. It did, however, consistently
show Petitioner's Dodge Charger. There is absolutely no
independent evidence of any kind that Brown
even knew Robert McCarthy and clearly nothing
connecting Brown to Robert McCarthy's homicide.
The Court does not find Brown's statement that he
"knew" Robert McCarthy to be credible.
2. Brown stated he drove to McCatthy's residence in his green
Jeep Patriot. (See Courtroom
Exhibit 2, 2A). This is completely belied by the surveillance
footage obtained from the area the night of
the,murder. Not only is there no footage of Brown's vehicle
parked nearby, but every other vehicle that
appeared in the footage was identified and none had a connection
to Brown. As ADA Lightner testified,
he personally reviewed the entire surveillance video
and no vehicle matching or resembling a green Jeep
Patriot appears at any point. In fact, ADA Lightner testified at no
time was a Jeep of any kind observed
the day or night of the murder (February 4 and 5, 2017).
Conversely, Petitioner's vehicle, a Dodge
Charger, was seen multiple times throughout the evening. The
Court finds ADA Lightner's testimony
reliable and corroborated by the credible testimony of Detective
Berarducci that there was nothing
connecting Brown to Mr. McCarthy or to the crime scene. Therefore,
these factors render Brown's
statement false.

23
3. Brown confessed that he called Mr. McCarthy on the
telephone early in the evening
before the murder prior to arriving at the residence.
(See Courtroom Exhibit 2, 2A). Detective
Berarducci testified there was no phone activity from Mr.
McCarthy's number after 6:15 p.m. on the
evening of February 4, 2017. Upon receiving Brown's
confession, Detective Berarducci reviewed Mr.
McCarthy's phone records and found no record of calls
with the, number connected to Brown. The
phone records did, however, show phone calls between
Mr, McCarthy and Petitioner. The Court finds

Brown's claim he called Mr. McCarthy the evening of
February 4, 2017 is not credible.
4. Brown identified the address of the McCarthy
residence as "592 East 9th Street" and
described the residence as "a regular house" with "white
siding" and "little steps." (See Courtroom
Exhibit 2, 2A). First, the Court takes judicial notice that there is no
"592 E. 9th Street" in Erie,
Pennsylvania, Further, "592" is not even an inverted
derivative of the correct address of 539 E. 9th
Street, Mr, McCarthy's residence. Next, Brown's description of the McCarthy residence is
also
inaccurate and lacks credibility. As depicted in the photos at
Commonwealth Exhibit 4A, 4B, and 4C,
Mr. McCarthy's residence was not a "regular
house" but was part of a larger house converted into
apartments. As police reports and testimony reveal, Mr. McCarthy's
residence at 539 E. 9th Street was
part of a four unit apartment complex. While the
portion encompassing 539 E. 9th Street does have
white. sit's, the front of the building is mainly comprised of brown stone. There are no "little steps" to
the door; instead, the property has a large wooden
handicapped ramp leading up to the door. Mr.
McCarthy's apartment at 539 E. 9th Street has a bright red door, red porch, and red iron post. When

asked by Trooper Vescetti to describe Mr. McCarthy's home, Brown
never mentioned a home with a
handicapped ramp, or the apartment with a red door, or the house with the
stone front facade and two
doors in the front. None of these unique and distinguishing factors
were stated by Brown. Brown's

generic description and lack of detail reveal his unfamiliarity with Mr.
McCarthy's residence and also

24
rings untrue. The Court finds that Brown's claim that he was ever
at Mr. McCarthy's home the night of
the murder or any other night is not credible.

5. In his statement, Brown claimed he used a 6 -inch hunting
knife to attack Mr. McCarthy.
(See Courtroom Exhibit 2, 2A). While it is true that Mr.
McCarthy was stabbed and the weapon was not
located, there was an evidentiary inference that the
sharp plastic tip found in the puddle of blood on the

couch was a remnant of the murder weapon as it was
consistent with the victim's wounds. ADA
Lightner and Detective Berarducci testified that based upon
the investigation and a review by the
forensic examiner, Dr. Vey, the pointed piece of plastic was
consistent with Mr. McCarthy's wounds.
Brown's claim that he used a hunting knife that he later "threw
into Lake Erie" also appears contrived.
6. Brown also stated he stabbed Mr. McCarthy three times. He specifically stated he
stabbed Mr. McCarthy once "in the side of the neck," "in the
back of the neck," then again "in the side
of the neck." (See Courtroom Exhibit 2, 2A). This statement is entirely
inconsistent with the forensic
findings. In the autopsy report (admitted as Courtroom Exhibit
3A), Dr Vey determined Mr. McCarthy
had been stabbed nine times. Specifically, the autopsy report
indicates:

ANATOMIC DIAGNOSES:

I. NINE SHARP FORCE INJURY WOUNDS TO THE HEAD AND
NECK.
A. SUPERFICIAL STAB WOUND TO THE LEFT OCCIPITAL
SCALP.
SUPERFICIAL SHARP FORCE INJURY WOUND TO THE
POSTERIOR MEDIAN MID NECK.
C. FOUR PREDOMINANTLY SUPERFICIAL SHARP
FORCE INJURY INCISED WOUNDS TO THE LEFT SIDE
OF THE NECK.
D. THREE STAB WOUNDS TO THE RIGHT SIDE OF THE
NECK.
1. STAB WOUND #8 WITH PENETRATION INTO
THE RIGHT INTERNAL CAROTID ARTERY
AND HYPOPHARYNX.
2. STAB WOUND #9 WITH PENEI RATION INTO
THE LARYNGOPHARYNX.

25
(Courtroom Exhibit 3A). Clearly, Brown's claim that he stabbed Mr. McCarthy three times is in

absolute conflict with the autopsy report and the fact that the victim suffered nine
stab wounds. This

evidence belies Brown's confession.

7. Brown's statement is further dismantled by his claim that after stabbing Mr. McCarthy, he

left him lying on his back in the living room. However, this is inconsistent with
the evidence at the

crime scene. It was determined that Mr. McCarthy had bled out on his couch and was
moved to the
floor before his body was burned. (See also, Commonwealth Exhibit 5). In fact,
according to Detective
Berarducci who was present at the scene of the crime, blood had "soaked through the
frame of the
couch." Commonwealth Exhibit 5, the picture of the interior of the residence, shows Mr.
McCarthy's
charred body lying on the floor next to a blood-soaked couch. There is no visible blood
on the floor.
Therefore, Brown's claim that Mr. McCarthy was stabbed three times and fell to the floor
is again in

conflict with the physical evidence at the crime scene and thus not credible.

8. Furthermore, Brown never mentioned anything about burning the body. Anyone with

first-hand knowledge of the crime would know Mr. McC,arthy's body was burned from the
waist up. As
ADA Lightner testified, that fact was so distinct that the case was locally known as "the
burned body
case." Detective Berarducci responded to the scene and took photographs of the body. The image of

Mr. McCarthy's charred body is depicted in Commonwealth Exhibit 5. Though Petitioner may argue

that Brown committed the murder and someone else came back later and burned the body, there is
a

dearth of evidence supporting this theory. There was overwhelming testimony that nothing connected

Brown to this crime and the overall strength of the evidence against Petitioner was strong. The most

rational conclusion this Court can draw is because Brown lacked the knowledge of burning the body, he

26
did not commit the murder. Although perhaps not the most persuasive factor to discredit Brown's

confession, it is a factor nonetheless worthy of consideration.

Finally, in assessing the credibility of Brown's statement, it is not lost on the Court that Brown is

serving life without parole for his double homicide and therefore faces no punitive consequences for

admitting to another murder. In fact, as testified to by Trooper Vascetti, Brown may be described as

somewhat of a serial killer because of his suspected role in other homicides.

Based on the above, the Court does not find Brown's alleged confession to be credible. The

vague details provided by Brown wholly conflict with the reality of the autopsy findings, the evidence at

the crime scene, and the other physical and circumstantial evidence linking Petitioner alone to the crime

(see review of evidence and testimony from evidentiary hearing, supra). Instead of specific details of

the crime, Brown provided somewhat generic descriptions which could easily be obtained from public

sources or the Petitioner himself. Having presided over all stages of Petitioner's case, this Court is

intimately familiar with the extensive media coverage it generated, which included details of the

homicide as well as depictions of the victim's home. Further, it does not take an extraordinary leap of

faith to think that Petitioner and Brown could not have concocted this scheme while they spent six

weeks together in the same pod at the Erie County Prison.

The Court is not swayed by the general details Brown was able to provide in his statement.

Petitioner may argue that Brown correctly identified the block on which the homicide occurred; that he

identified the general location of the wounds; or that he gave an accurate physical description of Mr.

McCarthy. However, the credibility of Brown's statement disintegrates when the minutia and detail of

the crime is considered. The overall weight of Brown's statement crumbles under the weight of the

evidence and overall strength of the Commonwealth's case against Petitioner, including Petitioner's own

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plea of guilty. Quite simply, Brown's incredible account fails to
survive as after-discovered evidence
and consequently, Petitioner cannot satisfy his burden necessary
for relief.

The Court has canvassed the Pennsylvania appellate courts
for precedent and guidance.
However, there is limited Pennsylvania caselaw concerning cases
involving a collateral appeal seeking
relief based on after -discovered evidence and the withdrawal of a
guilty plea. Making this case unique
is that the after -discovered evidence is the confession to
a murder by another inmate. However, the
Court finds support for its finding in decisions by sister
-states faced with strikingly similar
circumstances. For instance, in People v. Cress, 664 N.W.2d 174 (Mich. 2003), the Supreme Court of

Michigan considered a confession by an inmate, Rimming, to a murder for which
another man, Cress,
was convicted and concluded the confession conflicted with the
established facts and that Ronning was
not credible. In 1985, Cress was convicted of murdering seventeen -year
-old Patty Rosansky. In 1997,
Ronning, housed in a prison in Arkansas, agreed to confess to multiple murders in
exchange for a
transfer to a prison in Michigan closer to his family. In his alleged confession,
Ronning gave details
about the murder of Ms. Rosansky. Specifically, he stated she did not struggle; he
removed her clothing
but did not penetrate her anus; he murdered her by strangulation; and after she
died he threw a rock at

her head. People v. Cress, supra, at 177. Ronning accompanied police twice to try to identify the crime

scene and described it as "a clearing" and a "flat piece of ground, a clearing next to a two -track."
Id. at

180.

The court in Cress conducted a hearing during which it heard testimony from four expert

witnesses regarding the manner of death, which was determined to be multiple blows to the victim's

head. Id. at 179, 182. The weapon used was described as a rod -shaped object. Id. The victim had
been

anally penetrated. Id. Testimony was presented regarding the presence of defensive wounds on the

victim, and the lack of evidence of strangulation. Id. Most compelling to the court was Ronning's

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inability to identify the crime scene, as the victim's body was
found not in a clearing, but in a ravine near
identifiable landmarks. Id. at 180. The court stated: "When
looking at the differences between inmate's
description and photos of crime scene, the difference in
topography and terrain is dramatic. When one
compares his description of the crime scene to the actual
crime scene, the only reasonable conclusion
one can draw is that Mr. Ronning didn't know where
the crime scene was because he did not commit the

crime." Id. at 181 (internal citations omitted). The court
found Ronning's confession riddled with

inconsistencies and concluded that he was not credible. Id. at 183.

Likewise, in the case of State ex rel. Smith v. McBride, 681 S.E.2d 81 (W,Va. 2009), the Supreme

Court of Appeals of West Virginia considered the confession
by a death row inmate, Sells, to the
murders of a mother and daughter for which another man, Smith,
was convicted and found the
confession to be incredible and not aligned with the true facts. During Smith's trial, some of the
compelling evidence introduced included Smith's admission that he stole the
victims' car; the fact that a
key was used to start the car and the car keys were kept inside the
victims' house; Smith had stolen a
VCR, CB radio and a Walkman, all of which were kept inside the victims'
home; and the t -shirt Smith
was wearing belonged to the daughter and the daughter's blood was
found on the shirt. State ex rd.
Smith v. McBride, supra, at 95. Several years after Smith was convicted, Sells gave a videotaped
confession to prison officials at the Texas prison where he was serving on death row. Id. at
87. Sells
claimed he was actually the one who had killed the victims, stating he had met
the daughter during a
drug deal and she allowed him to live in the attic (which he described as an
upstairs apartment that had a
bedroom and bathroom) without the mother's knowledge. Id. After several days, the mother
discovered
Sells was living in the attic and after an argument Sells stabbed both victims. Id. Sells
stated there was
a dog in the house but he would never harm a clog. Id. Sells described the crime scene as having a

brown couch with a black afghan. Id. He stated after the murder he stole a CB radio and left the house

29
on foot. Id. Sells acknowledged he and Smith were in
prison together for a period of time in West
Virginia but claimed they did not have contact.
Id. at 87-89.

During the hearing on the after -discovered
evidence of Sells' confession, the court heard
testimony from the investigating officer that the
victims had two dogs, one of which was found
killed
and hidden in the laundry room. Id. at 88. The
only CB radio the victims had was the same one
taken
by Smith. Id. It was proven the victims
did not have a couch with a black afghan,
and more
importantly, the victims' home did not have an upstairs
bedroom and bathroom. Id. Upon review of the
alleged confession and its discrepancies with the
facts of the case, the court found Sells confession was
implausible and not credible. Id. at 96.

Here, as the coin determined in Cress and McBride, this Court finds Brown's
alleged
confession inconsistent with the facts of the case and simply
not credible when considered in totality of
all the facts and evidence of record. Rather, this Court recognizes this after -discovered
evidence claim
as a desperate attempt by Petitioner to take
advantage of the serendipitous circumstances of being
housed together in pod F -B at the Erie County Prison with
Brown, who was an inmate who was being
investigated for committing several other homicides (See testimony
of Trooper Vascetti, supra).7 It is
inconceivable that Petitioner and Brown weren't aware of each other
when they were housed together in
pod F-B at the Etie County Prison for the better part of
two months with daily access to each other. It

does not require a stretch of the imagination to consider
Petitioner may have convinced Brown, an easy
target facing life imprisonment with no possibility of parole and
already on the police radar for other

7
Regis Brown was charged with two counts of Murder/Homicide, inter nlia,
at Docket No. CP-25-CR-0001608-2018 in Erie
County, Pennsylvania for killing his wife and stepdaughter. Brown was also
being investigated for the 1988 Lawrence
County murder of Bryce Tompkins, and was formally charged in that case in October
2018. Trooper Vascetti testified he also
suspects Brown may have murdered Dawn Morgan in Erie County in 1988, but the case
was ultimately cleared due to the
inability to establish cause or manner of death.

30
murders, to take the fall for McCarthy's murder too. Brown's confession
lacked the necessary detail to
make it credible because he did not commit the murder of
Robert McCarthy. The Petitioner did.
Petitioner has not met his,burden of proof. Specifically, he has not
proven by a preponderance of
the evidence that exculpatory evidence has become
available that would have changed the outcome if it
had been introduced. See 42 Pa.C.S.A. § 9543(a)(2)(iv). The Court has considered the "integrity of the

after-discovered evidence" of Brown's alleged confession and, as
discussed in detail above, has found it
lacks overall integrity. See Commonwealth Padillas, supra, at 365.
v. This is premised on the
following: Brown had no known connections to the victim; the surveillance
footage did not place his
vehicle at or near the victim's residence; Brown's lack of detail in describing the victim's home; the
error in the number of wounds inflicted; and other inconsistencies as set
forth in this Opinion, supra.
Pursuant to Padillas, supra, the Court'has considered the various motivations of
Petitioner and Brown in
offering the evidence and finds Petitioner certainly has a strong motive in being
permitted to withdraw
his guilty plea while Brown truly has nothing to lose in taking the
blame. Id. The Court has also
considered the "overall strength of the evidence" against Petitioner and finds the
evidence supports the

Commonwealth's assertion that Petitioner was the individual who murdered Mr. McCarthy.
Id. This

would include the following substantial physical evidence connecting Petitioner to
Mr. McCarthy's
murder; Mr. McCarthy's personal items (wallet and pill bottle) found in Petitioner's vehicle; the towel

with the victim's blood found in Petitioner's vehicle; the cleaning supplies found in the
trunk of
Petitioner's car; witnesses placing Petitioner with Mr. McCarthy immediately prior to the murder;

Petitioner's changing his clothes subsequent to the murder; Petitioner's vehicle being in close proximity

to Mr. McCarthy's apartment at the approximate times of the murder and the subsequent fire; and

Petitioner's statements that he "screwed up" and "would never see his kids again." The overall strength

31
of the Commonwealth's case is also bolstered by
Petitioner's own knowing, voluntary, and intelligent
guilty plea to the murder and robbery of Robert McCarthy.

Therefore, on application of the after -discovered evidence analysis,
this Court finds there is
nothing set forth by Petitioner that is likely to have
compelled a different outcome, and no manifest
injustice has occurred to permit Petitioner to withdraw his guilty
plea. Petitioner is not entitled to relief.

Conclusion
Upon a review of the PCRA, the Supplemental PCRA, the responses
by the Commonwealth, and
the entirety of the record, including the evidential)/
hearing and exhibits, this Court has determined
Petitioner's after-discovered evidence claim is patently frivolous and
without factual or legal support.
Rather, as discussed, in-depth supra, this Court views the claim as
an opportunistic attempt by Petitioner
to take advantage of a sensational local news story
to attempt to re -litigate convictions for which he

accepted culpability and entered a knowing, voluntary, and
intelligent guilty plea. Therefore,
Petitioner's PCRA is hereby DISMISSED and his request for relief is
DENIED. An Order will follow.

BY THE COURT:

77

John J. Trilla
27,,dire4
President Judge
/.flon.
C

cc: Michael Bums, Esq., Office of the District Attorney
William R. Hathaway, Esq., 1903 West 8th Street, PMB # 261, Erie, PA 16505
John Earl Poole, Jr., #NK0508, SCI -Forest, Unit HA -2042, Box 945, Marienville, PA
16239 (via certified mail)

32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4574056. Public record. Not legal advice.