Appeal from order of Court of Common Pleas of Washington County, May T., 1970, No. 554, in case of Commonwealth of Pennsylvania v. Emil Paul Karchella.
Frank A. Conte, for appellant.
Roger J. Ecker, Assistant District Attorney, and Jess D. Costa, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.
On February 23, 1971, appellant, represented by counsel, pleaded guilty to murder generally.*fn1 The court found him guilty of voluntary manslaughter and imposed a sentence of not less than four years nor more than eight years. Appellant took no direct appeal from this judgment of sentence, although he was advised of his right to appeal by the sentencing judge. On July
, 1971, appellant filed a petition pursuant to the Post Conviction Hearing Act*fn2 in which he requested a new trial or a reduction of sentence. Following a hearing, with counsel, all requested relief was denied, and appellant appealed.
Here appellant raises three issues: (1) the Commonwealth's witnesses perjured themselves at the degree of guilt hearing, thus making appellant's sentence "harsher than it [otherwise] would have been;" (2) he was denied effective assistance of counsel; and (3) he "was unlawfully induced to enter his plea" of guilty.
Appellant asserts that decedent's wife perjured herself when she testified at the degree of guilt hearing that decedent was unarmed at the time he was shot. Appellant does not claim that the perjured testimony prejudiced the verdict. In fact such a contention would be completely frivolous since appellant was found guilty of voluntary manslaughter. Appellant, however, does argue that the alleged perjury resulted in a more severe sentence than he would otherwise have received. At first glance the logical nexus between the claimed perjury and the length of sentence is somewhat obscure. What appellant appears to be arguing is that if, in fact, decedent was armed at the time of the shooting, then there could be sufficient mitigating circumstances to persuade a judge to impose a lesser sentence. However, at the post-conviction hearing appellant could not produce sufficient evidence to sustain his claim of perjury. The only testimony appellant adduced at the hearing was (1) his personal assertion that decedent's wife committed perjury; (2) the testimony of one witness, not present at the time of the shooting, that two hours prior to the shooting decedent was carrying a gun; and (3) the testimony
of another witness that at the time of the shooting he observed a person, whom he could not identify, on decedent's property carrying a gun.
The issue presented by this evidence is one of credibility, and the hearing judge resolved the issue against appellant. Moreover, the court could have properly concluded that the other testimony, even if believed, was insufficient to sustain the perjury claim. The hearing court has authority to believe all, part of, or none of a witness' testimony. Commonwealth v. Harris, 444 Pa. 515, 281 A.2d 879 (1971); Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970); Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963). Since appellant failed to prove ...