Appeal from order of Superior Court, Oct. T., 1967, No. 741, affirming order of Court of Quarter Sessions of Philadelphia County, Nov. T., 1965, Nos. 1015 and 1016, in case of Commonwealth of Pennsylvania v. James Alston.
James Alston, appellant, in propria persona.
Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell concurs in the result. Dissenting Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Cohen.
James Alston was found guilty on March 17, 1966 by a jury of assault and battery with intent to ravish
and corrupting the morals of a minor. A sentence of 2-1/2 to 5 years was imposed for the assault conviction and 18 months to 3 years for the morals conviction, said sentences to run concurrently. The Superior Court affirmed these convictions per curiam without opinion. See Commonwealth v. Alston, 209 Pa. Superior Ct. 731, 226 A.2d 204 (1967). Alston then filed a March 15, 1967 petition under the Post Conviction Hearing Act which was denied and this denial also affirmed per curiam by the Superior Court.*fn1 See Commonwealth v. Alston, 211 Pa. Superior Ct. 705, 234 A.2d 222 (1967). A petition for allocatur was filed and subsequently granted.
The contention now pressed is that perjury by a Commonwealth witness was employed to secure appellant's conviction. The Commonwealth stipulated below that Miss Agnes Mallatrath did in fact lie concerning her qualifications as a medical technician with expertise in forensic laboratory diagnosis. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173 (1959), sets forth the guide-lines governing any post-conviction claim that a conviction was procured through use of perjured testimony (supra at 269, 79 S. Ct. at 1177): "[I]t is established
that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, . . . The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. . . . The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness." (Emphasis supplied.)
Napue thus requires that the perjured testimony have been employed with either the acquiescence or knowledge of the state. However, in a document attached to his post-conviction form which appellant denominated as a writ of habeas corpus, Alston admitted "that the state had no intention of purposely presenting this witness to perjuring [sic] herself to get a conviction and believes that the state presented this witness in good faith." Given this admission, appellant's allegation does not meet the Napue knowledge requirement.
Alternatively, Alston contends that the after-discovered evidence of Miss Mallatrath's falsification of her qualifications is sufficient to support the grant of a new trial despite the fact that the Commonwealth had no knowledge at the time of trial of her prejury. The standards here applicable are enunciated in Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A.2d 13, 17 (1960), cert. denied, 368 U.S. 884, 82 S. Ct. 138 (1961): "In order to justify the grant of a new trial on the basis of after-discovered evidence, the evidence . . . must not be cumulative or merely impeach ...