# Commonwealth v. D'Amato > Supreme Court of Pennsylvania · September 2, 2004 · 579 Pa. 490 URL: https://www.frixlaw.com/law-library/cases/9731759 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Joseph D’AMATO, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** September 2, 2004 - **Citations:** 579 Pa. 490; 856 A.2d 806; 2004 Pa. LEXIS 2054 - **Precedential status:** Published - **Opinion:** Concurrence by Eakin - **Judges:** Cappy, C.J., and Castille, Nigro, Newman, Saylor, Eakin and Baer - **Cited by:** 325 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731759 ## How later opinions describe it (automated extraction) - holding that, to obtain relief based upon section 9543(a)(2)(vi), a petitioner must establish 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) i… - stating that “to obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of material fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused it… - holding that, where a lawyer who had not entered his appearance pursuant to the criminal procedural rules effectively represented a defendant during a critical stage of trial, the technical defect did not deprive the defendant of his right to counsel - stating that to obtain relief on an ineffectiveness claim, the “petitioner must, at a minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness standard as set forth in … Pierce....” - stating that to succeed on allegation of counsel’s ineffectiveness, PCRA petitioner must, at minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness standard ## Opinion text CONCURRING OPINION Justice EAKIN. I join the majority opinion with respect to the resolution of all issues. Recognizing the precedent of employing the after-discovered evidence test to analyze recantation testimony, I write separately only to suggest that test is not really designed to assess post-verdict recantation, and ought to be reconsidered. Recantation at this stage may “fall under the heading” of after-discovered evidence, but this is only because it is “discovered after” trial. True “after-discovered evidence” is evidence that was existent but undiscovered at the time of-trial as opposed to recantation evidence which did not exist at trial. Analysis under the after-discovered evidence exception requires examination of whether a petitioner has shown the evidence: *525 1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; 2) is not merely corroborative or cumulative; 3) will not be used solely to impeach the credibility of a witness; and 4) is of such nature and character that a different verdict will likely result if a new trial is granted. Commonwealth v. McCracken, 540 Pa. 541 , 659 A.2d 541, 545 (1995) (citation omitted). As the test clearly assumes, after-discovered evidence existed at the time of trial, it was just not discovered until later. Recantation is new evidence, withdrawing, or repudiating that which went before; by definition, this “new” evidence was nonexistent at the time of trial. Thus, as applied to recantation, the first prong is never determinative; it is definitionally redundant and meaningless. Likewise, the value (or lack thereof) of recantation evidence is not measured by the second prong, which considers whether it is merely corroborative or cumulative. It is inherently non-corroborative and non-cumulative of the testimony recanted; while the substance of it may, in the end, corroborate or be cumulative of other evidence, this has little to do with whether it should be the basis of relief. The very act of recanting gives the resultant version a different reputation and pedigree than other consistent-from-the-first testimony. When can recanted trial testimony be termed “merely cumulative,” such as to make this prong analytically valuable? The third prong is likewise not designed to measure recantation evidence, which will not be used solely to impeach. Recantation is new and different testimony. It certainly may involve credibility issues for the recanting witness, but the testimony must have some relevance beyond impeachment or it is not admissible in the first place. If the original testimony was used to impeach, the recanted testimony would tend to un-impeach, not impeach; conversely if it was not originally *526 impeachment testimony, it will not be solely impeachment testimony in the recanted form. The last prong certainly applies, but the first three do not. The fourth prong is, in my judgment, sufficient to test recantation evidence, understanding that such is always of questionable credibility. However, in trying to fit the shoe of the after-discovered evidence test on the foot of recantation evidence, we end up simply with a test that is not a good fit. Thus, I offer this concurrence, suggesting the applicable rule be recobbled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731759. Public record. Not legal advice.