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COMMONWEALTH v. MOUNT (10/09/69)

decided: October 9, 1969.

COMMONWEALTH
v.
MOUNT, APPELLANT



Appeal from order of Court of Common Pleas of Philadelphia County, Sept. T., 1963, No. 236, in case of Commonwealth v. George A. Mount.

COUNSEL

Stephen M. Feldman and Robert E. Lenton, for appellant.

Edward G. Rendell and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell dissents.

Author: Jones

[ 435 Pa. Page 421]

Appellant was indicted for the murder of one Frances Lieberman on August 29, 1963.*fn1 After he pleaded guilty to murder generally, a three-judge panel was convened under local Philadelphia practice to hear testimony on the degree of guilt. Upon hearing all the evidence, the panel determined that appellant had raped his victim in addition to killing her and fixed the penalty at death in the electric chair. This Court

[ 435 Pa. Page 422]

    upheld the conviction against appellant's charge that there was insufficient evidence to prove that a rape had been committed. Commonwealth v. Mount, 416 Pa. 343, 205 A.2d 924, cert. denied, 381 U.S. 954 (1965). Subsequently, we also denied appellant's petition for habeas corpus. Commonwealth ex rel. Mount v. Rundle, 425 Pa. 312, 228 A.2d 640, cert. denied, 389 U.S. 875 (1967). Appellant then filed the present petition under the Post Conviction Hearing Act.

Appellant's principal contention concerns the testimony of one Agnes Mallatratt. Miss Mallatratt was employed by the Philadelphia Police Department as a laboratory technician specializing in blood and other body fluid stains. After she had testified in many cases, it was discovered in 1965 that she had lied about her professional qualifications in that, in reality, she had never fulfilled the educational requirements for a laboratory technician. Miss Mallatratt testified at appellant's sentencing hearing that she found seminal stains and bloodstains matching the deceased's blood type on a pair of underpants found among the appellant's belongings at the time of his apprehension. Appellant alleged in his PCHA petition that the subsequent revelation that Miss Mallatratt had perjured herself requires that her testimony be disregarded. Appellant further contends that without Miss Mallatratt's testimony there is insufficient evidence upon which to find that a rape had been committed and that, therefore, he is entitled to be resentenced.*fn2 The court below

[ 435 Pa. Page 423]

(per Weinrott, J.) denied the petition without a hearing.*fn3

This is the second case which has come before this Court involving testimony by Miss Mallatratt. In Commonwealth v. Alston, 430 Pa. 471, 243 A.2d 404 (1968), we held that the rules governing after-discovered evidence would apply to cases tried before it was revealed that Miss Mallatratt had perjured herself. In Commonwealth v. Schuck, 401 Pa. 222, 164 A.2d 13 (1960), cert. denied, 368 U.S. 884 (1961), we outlined the circumstances which would justify the grant of a new trial because of after-discovered evidence as follows: "In order to justify the grant of a new trial on the basis of after-discovered evidence, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result : [citing authorities]." (Emphasis added) (401 Pa. at 229)

The Commonwealth's initial argument is that since Miss Mallatratt did not testify concerning her qualifications at appellant's ...


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