Appeal, No. 330, Jan. T., 1956, from order of Court of Oyer and Terminer of Philadelphia County, Dec. T., 1946, Nos. 964, 965 and 966, in case of Commonwealth of Pennsylvania v. William S. Green. Appeal dismissed.
Rose Kotzin, with her Abraham E. Freedman and Freedman, Landy & Lorry, for appellant.
Thomas M. Reed, Assistant District Attorney, for appellee.
Before Stern, C.j., Jones, Chidsey, Musmanno and Arnold, JJ.
This is an appeal from the refusal of the court below, sitting en banc, to grant defendant a new trial under the provisions of the Act of April 22, 1903, P.L. 245, 19 PS § 861, et seq.
Appellant, William S. Green, was regularly indicted, tried, and convicted of murder of the first degree in 1947, the jury fixed the penalty at life imprisonment, and the sentence on the verdict was affirmed: Commonwealth v. Green, 358 Pa. 192, 56 A.2d 95. In 1953 a petition for allowance of a new trial was filed in this Court on the grounds of after-discovered evidence under the Act of April 22, 1903, supra, which petition was denied Per Curiam. On February 10, 1956 appellant filed another petition in this Court under the Act of
April 22, 1903, alleging further after-discovered evidence. This petition was granted*fn1 and we issued an order to the Court of Oyer and Terminer of Philadelphia County authorizing it to grant a rule for new trial nunc pro tunc. The rule was allowed, but, after argument thereon, was discharged and new trial refused. This appeal followed. The District Attorney, representing the Commonwealth, joined in the prayer of appellant's petition in the court below for a new trial and also joins with appellant here.
Section 2 of the Act of 1903, 19 PS § 862, provides: "Upon the termination of the hearing of ... [the rule for a new trial], if the court of oyer and terminer shall not deem the grounds sufficient it shall thereupon discharge said rule, and the proceedings shall terminate, and the judgment and sentence theretofore entered of record shall remain unaffected.". The effect of this section is the same as though the Legislature had said in terms, "There shall be no appeal from an order discharging such a rule for new trial": Commonwealth v. Greason, 208 Pa. 126, 57 A. 349; Commonwealth v. Cicere, 286 Pa. 296, 133 A. 795; Commonwealth v. Del Vaccio, 303 Pa. 519, 154 A. 789. The law is clear that where a statute expressly provides that there shall be no appeal, the scope of appellate review is limited to the question of jurisdiction and the regularity of the proceeding; the merits of the controversy cannot be considered even though the interpretation given to the facts or the law by the court below may have been erroneous:
developments. He may ask the Board of Pardons to recommend that the Governor exercise his power to grant a pardon.
ING OPINION BY MR. JUSTICE MUSMANNO:
With all due respect, I feel myself obliged to say in this case that the Majority Opinion misses the whole point in the appeal. The question before us is not whether William S. Green was convicted under due process of law. No one disputes that the defendant was accorded due process of law when he was tried for murder in 1947. What the defendant submits to this Court for consideration, and what his learned counsel so ably presented to this Court, both orally and by exhaustive brief, is that, after Green was convicted, the light of events brought into focus the astonishing fact that two of the witnesses who had contributed much of the motive power which had carried him to the penitentiary for life, had committed perjury at his trial. Thus, in this state of affairs, the path of law and logic is invaded by the foliage of irrelevancy when the Majority Opinion says: "... it is clear that appellant was convicted and sentenced under due process of law. The court had jurisdiction, he was represented by competent counsel, and had a fair and impartial trial before an able and just judge." Of course, the trial Court had jurisdiction; of course the appellant was represented by competent counsel; of course, he had a fair and impartial trial before an able and just judge, and, I am happy to add, one of the ablest trial judges in the country. But what the appellant brings to this Court's attention is that, with all of the Court's jurisdiction, and
with all of the competence of counsel, and with all of the fairness and impartiality of a trial before an able and just judge, the Commonwealth still convicted the wrong man! Not because of any failure of due process of law, but because of false testimony introduced against him. If that contention wears the flesh of truth and reality, no one should seriously maintain that he does not deserve a new trial.
The defendant was convicted of murder in the first degree on the testimony of three identifying witnesses: James Hargett, Alonzo Suggs, and Lonnie Caldwell. About a year ago, one of these men, James Hargett, confessed that he had given false testimony at the trial. He stated, under oath, that he not only could not identify Green as the killer but that in fact he was not even at the scene of the crime. Further, that it was Alonzo Suggs, one of the other witnesses, who, on the offer of a bribe, suborned him, Hargett, to commit the perjury. This recantation was brought to the attention of the District Attorney of Philadelphia County, who, with commendable dispatch, launched an investigation of his own. Hargett repeated to him the story of ...