Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1958, No. 993, in case of Commonwealth v. Charles Coleman.
Peter A. Galante, for appellant.
Martin H. Belsky 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 O'Brien. Dissenting Opinion by Mr. Justice Roberts.
On July 1, 1957, Frank McCoy and James Allen entered the grocery store owned by Gaetano Sabelli, a former employer of McCoy, and perpetrated an armed robbery, during which McCoy shot and killed Sabelli while Allen acted as "lookout." McCoy was tried by a jury and convicted of murder in the first degree, sentenced to death and subsequently executed. Allen pleaded guilty to a charge of murder generally, was found guilty of first degree murder and was sentenced to life imprisonment. The Commonwealth then tried appellant Coleman, charging that he was a participant, driving the "get-away" car and therefore an accessory before and after the fact. Appellant was brought to trial before the Honorable Bernard J. Kelley and a jury on June 22, 1959, on Indictment No. 993, April Sessions, 1958, charging murder.
At the trial, both McCoy and Allen testified for the Commonwealth. Their testimony established that when appellant drove McCoy and Allen to the neighborhood of the crime, he had full knowledge that McCoy had a gun which he intended to use in committing a robbery of Sabelli's store.
Appellant's defense was that he knew nothing about the plans of McCoy and Allen for the robbery, or McCoy's possession of a gun. He only knew what Allen told him, which was that Allen and McCoy were to borrow money from a numbers writer. He had never met McCoy before McCoy got into his car the morning of the robbery.
The jury must have believed Allen and McCoy, not Coleman, because on June 25, 1959, appellant was found guilty of murder in the first degree and the jury fixed the penalty at life imprisonment. On January 4, 1961, we affirmed the judgment of sentence. Commonwealth v. Coleman, 402 Pa. 238, 166 A.2d 525 (1961).
Appellant filed a petition for a new trial one year later on the grounds of after-discovered evidence. Judge Kelley heard testimony by Frank McCoy on January 25, 1962, shortly before he was executed. At that hearing McCoy's testimony did not contradict the testimony he had given at Coleman's trial, where he testified that he never knew Coleman before, that he heard Allen tell Coleman that they were going to see a numbers writer, but that he and Allen discussed the robbery in Coleman's presence. However, he did state for the first time that Coleman knew nothing about the robbery or the plans for the robbery and he refuted the testimony which Allen had given at Coleman's trial, namely that the robbery had been discussed by the three men at breakfast that morning.
On January 9, 1963, at a hearing before Judge Kelley, Allen recanted the testimony he ...