Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

COMMONWEALTH v. OSBORN (03/27/73)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 27, 1973.

COMMONWEALTH
v.
OSBORN, APPELLANT

Appeal from decision of Court of Common Pleas of Mercer County, June T., 1965, No. 78 and March T., 1966, No. 84, in case of Commonwealth of Pennsylvania v. Kenneth L. Osborn.

COUNSEL

William G. McConnell, and Cusick, Madden, Joyce & McKay, for appellant.

Robert F. Banks, First Assistant District Attorney, and Joseph J. Nelson, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 223 Pa. Super. Page 524]

This appeal involves the question of whether or not appellant is entitled to a new trial where he alleges that his conviction was based on the perjured testimony of his co-defendant.

Appellant was convicted of burglary and larceny. During trial, appellant's co-defendant implicated him in the commission of these crimes. Appellant now contends that his co-defendant has recanted admitting that his testimony against appellant was perjured. The lower court which heard appellant's Post Conviction Hearing Act Petition denied his motion for a new trial.

If petitioner's sole reason for a new trial is that a prosecution witness has recanted, an appellate court will only reverse the lower court's denial of a new trial when there has been a clear abuse of discretion. Commonwealth v. Coleman, 438 Pa. 373, 377, 264 A.2d 649, 651 (1970). Since the affidavit of a Commonwealth witness who recants his testimony is extremely unreliable, the hearing court must deny relief where it is not satisfied that a recantation is true. Coleman, supra; Commonwealth ex rel. Estelle v. Cavell, 191 Pa. Superior Ct. 200, 156 A.2d 615 (1959).

Generally, recantation testimony is offered by an accomplice who no longer has any interest in telling the truth. The accomplice is usually induced to change his story to get his party "off the hook." Just as a co-defendant's testimony is viewed with caution when initially received, such testimony should be given no more credence when recanted. Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786, 789 (1971).*fn1

[ 223 Pa. Super. Page 525]

Considering that recantation involving perjury is the most unreliable form of proof, Coleman, supra, the lower court has not abused its discretion in denying a new trial.

Accordingly, we affirm the decision of the trial court to deny appellant a new trial.

Disposition

Decision affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.