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COMMONWEALTH v. MOEHRING (12/29/71)

decided: December 29, 1971.

COMMONWEALTH
v.
MOEHRING, APPELLANT



Appeal from order of Superior Court, April T., 1968, No. 182, affirming judgment of sentence of Court of Quarter Sessions of Allegheny County, Oct. T., 1966, No. 601, in case of Commonwealth of Pennsylvania v. Ernestine M. Moehring.

COUNSEL

Emanuel Goldberg, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, Eagen, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell, Mr. Justice O'Brien and Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: Jones

[ 445 Pa. Page 402]

The factual genesis of this appeal is set forth in Lanning Will, 414 Pa. 313, 315-16, 200 A.2d 392, 393 (1964): "Decedent, 93 years of age, died on August 26, 1960. On December 1, 1960, decedent's lawyer-prepared typewritten will dated April 13, 1951, was admitted to probate. Three months later, George Moehring (Moehring), sole beneficiary under the holographic writing of September 4, 1954, appealed from the probate of the 1951 will. Moehring's appeal was sustained by the Orphans' Court of Allegheny County, and the Register of Wills was authorized to entertain an application to probate the 1954 will; thereafter, the 1954 will was duly probated. Shirley L. Lober, decedent's niece and residuary legatee under the 1951 will, then appealed to the Orphans' Court alleging (a) the 1954 will had been obtained through fraud, duress and undue influence exerted upon decedent by Moehring and his wife, (b) the said will was a forgery and (c) decedent lacked testamentary capacity."

The Orphans' Court of Allegheny County subsequently upheld the 1954 will and dismissed the appeal. On appeal to this Court, we reversed the decree and remanded the matter for proceedings consistent with the views expressed in our opinion. On remand, the Orphans' Court reversed its original position by sustaining the appeal of the contestant and vacating the earlier decree which had admitted the 1954 will to probate.

The two subscribing witnesses to the 1954 will were Jo Evelyn Johnston and Robert Johnston, her husband, who testified that, in the presence of Mr. Lanning, they had signed the 1954 will as subscribing witnesses at the request of Mr. Lanning and had seen him execute the will. Between the time we reversed the Orphans' Court of Allegheny County and the time of the second hearing on remand, both Johnstons repudiated their testimony

[ 445 Pa. Page 403]

    and admitted that they had not subscribed as witnesses in the presence of Mr. Lanning and, in fact, did not sign their names as witnesses until 1960 at the request of Mrs. Moehring (appellant), the operator of the nursing home in which Mr. Lanning had been a guest and the wife of the beneficiary under the 1954 will.

The Johnstons were indicted for perjury based on their testimony at the original probate hearing and appellant was indicted for subornation of perjury. When appellant's trial took place, Mr. Johnston was a witness for the Commonwealth and testified that he had lied under oath. Mrs. Johnston appeared as a witness for the appellant and recanted the statement which she had given to the effect that she had lied at the Orphans' Court hearing.*fn* Appellant was subsequently found guilty of subornation of perjury by a jury and was sentenced after disposition of post-trial motions. The Superior Court affirmed per curiam, two judges concurring. Com v. Moehring, 216 Pa. Superior Ct. 135, 264 A.2d 415 (1970). We granted allocatur and now reverse.

The only material evidence against appellant was the testimony of Mr. Johnston, who at the time of trial was himself under indictment for perjury. Nearly a month before appellant's trial, the Assistant District Attorney prosecuting appellant filed a petition to nolle pros. the indictment against Mr. Johnston. The Commonwealth's petition stated, inter alia, that Mr. Johnston ". . . gave [sic] testimony in the case of Commonwealth v. Ernestine Moehring . . . which resulted [sic] in her conviction for subornation of perjury. . . ." Eleven days after ...


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