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COMMONWEALTH v. SHOLDER (09/12/63)

September 12, 1963

COMMONWEALTH
v.
SHOLDER, APPELLANT.



Appeal, No. 172, Oct. T., 1963, from judgment of Court of Quarter Sessions of Lycoming County, Sept. T., 1962, No. 104, in case of Commonwealth of Pennsylvania v. LaRue E. Sholder. Judgment affirmed.

COUNSEL

Ambrose R. Campana, with him Campana & Campana, for appellant.

Paul W. Reeder, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 201 Pa. Super. Page 643]

OPINION BY MONTGOMERY, J.

This is an appeal by Larue E. Sholder from a conviction and sentence on an indictment for the crimes of conspiracy and receiving stolen goods. The stolen goods consisted of twenty cartons of cigarettes stolen from a wholesale distributor. The indictment charged conspiracy with a co-defendant, Walter Vanemon, who was indicted for the crimes of larceny, receiving stolen

[ 201 Pa. Super. Page 644]

    goods, and conspiracy. A third person, James H. Moyer, was indicted for larceny, receiving stolen goods, and conspiracy; Moyer pleaded guilty, was sentenced, and became the main Commonwealth witness against Vanemon and Sholder, the appellant.

Sholder and Vanemon were tried jointly and convicted by a jury of both conspiracy and receiving stolen goods, but Vanemon was acquitted on the charge of larceny.

Appellant's motion for a new trial alleged numerous errors, but at argument the appellant's counsel stated that there were no errors of law and that the trial was fair. The sole remaining argument for the motion was based on the recantation by James H. Moyer of part of his testimony, which recantation was in the form of a letter written to his mother in which he confessed to perjury.

James H. Moyer had testified that he had stolen the cigarettes from his employer, Aderhold and Fiester, and that on three different occasions the appellant, who was then a policeman, received cartons of cigarettes from him. In his letter to his mother Moyer states that the reason for his perjury was because of phone threats that he "would be in for it" if he did not implicate Sholder, and that he would be made to serve the remaining term of a three and one-half year sentence from which he was then on parole. In his recantation he states that the appellant knew nothing about the theft of the cartons of cigarettes, and that he had made only one delivery to the appellant. At the trial he had fully implicated the appellant and stated that Sholder had made more than one pickup of the stolen cigarettes from him.

The well established rule is that an appellate court may not interfere in the granting of a new trial where the sole ground is the recantation of the State's witness ...


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