with the startling witness-stand confession by the real culprit in the wake of the conviction of an innocent man. In addition, although afforded a week after the hearing to do so, Bostic advanced no proof that it was the Walker sisters or Silas who in fact had implicated him in the bank robbery, thus breaking the alleged common thread or skein.
Regardless of whether we are entitled to draw any inference from the failure of Silas Walker to testify, we do not credit the testimony of Bostic as to Silas's alleged declarations; indeed, we find his testimony incredible. It was also ephemeral, for whenever a critical point seemed in the offing, the testimony became terribly vague. Moreover, there was never any detailed testimony about the bank robbery. Indeed, Bostic's testimony was so vague that after persistent questioning we were not sure whether it was the bank robbery or the Hoagie Hut robbery that Silas allegedly had said Bostic and Bradby were falsely implicated in. Nor was Bostic's testimony as to Silas Walker's declarations buttressed by that of Mattero, who was equally vague and whom we do not credit either. We also have serious doubt as to the credibility of Mattero's testimony regarding the Hoagie Hut robbery. For instance, we are dubious that Jesus Rivera, who, as the testimony indicated, was so well known in Lacey Park, would commit a robbery of a business there in plain view of so many bystanders. In addition, the transcript of the preliminary arraignment in Bucks County (see note 4) contradicts Mattero's story. However, we need not make a finding on that point because the principal prop of Bostic's theory about the Lacey Park robbery was never established by the evidence: i.e., that he was "fingered" for the robbery by the Walker sisters. Rivera's involvement would make no difference to the question whether Bostic was falsely accused of the robbery.
There was one other prong to Bostic's theory that he had been framed by Silas Walker and his sisters in an effort to absolve themselves of the bank robbery: Bostic's contention about a burglary in Montgomery County, Pennsylvania in which he had been implicated. Bostic testified that the Montgomery County charges against him were dropped when the Walker sisters failed to implicate him at a preliminary hearing. Again, however, although given an additional week after the hearing to do so, Bostic was unable to adduce any evidence that the Walker sisters had implicated him. Hence, all that stands on this record is that they came to his aid, and that does not help him here.
The most reliable person called by Bostic, and the one who might have made some impact in advancing Bostic's theory that he had been "framed," was Demetrius Lewis, the prison counselor. However, Lewis's testimony did not advance this theory in any respect. His only recollection on the subject was that Bostic had protested his innocence and that someone said that someone else did not commit a robbery; he could not recall who said what to whom. He did not testify that he recalled Silas Walker having made any statements such as those imputed to him.
In order to warrant the granting of a motion for new trial on the basis of newly discovered evidence, the following criteria must be met: (1) the evidence relied upon must not be merely incriminating or impeaching, (2) the evidence must be material to issues involved in the previous trial, and (3) the evidence must be such that a new trial will probably result in an acquittal. United States v. Craft, 421 F.2d 693 (9th Cir. 1970); United States v. Rutkin, 208 F.2d 647 (3d Cir. 1953). Motions for a new trial on the ground of newly discovered evidence are to be granted with the greatest of caution and are generally not favored by the courts. United States v. Kozak, 438 F.2d 1062 (3d Cir. 1971). Since the defendants claim that injustice has been done and seek to have the result of the jury set aside, their motion must be sustained not as a matter of speculation but as a demonstrable reality. United States ex rel. Darcy v. Handy, 351 U.S. 454, 76 S. Ct. 965, 100 L. Ed. 1331 (1956). Moreover, on a motion for a new trial, evidence, along with all inferences reasonably and logically deducible therefrom, must be viewed in a light most favorable to the Government. United States v. Minker, 312 F.2d 632 (3d Cir.), cert. denied, 372 U.S. 953, 83 S. Ct. 952, 9 L. Ed. 2d 978 (1962); United States v. Mathews, 335 F. Supp. 157 (W.D. Pa. 1971).
The Court must first decide whether the evidence presented is credible. In this regard, the trial judge has broad discretion. United States v. Maddox, 444 F.2d 148 (2d Cir. 1971). As we have noted, we do not consider the evidence produced in support of the motion to be credible. We have discussed this question above; this conclusion stems not only from our failure to credit the testimony produced by Bostic at the May 24 hearing, but also from the inexplicable variance between the defendant's positions at the May 3 and May 24 hearings. However, even if the testimony were credible, it would not suffice. There is no testimony to the effect that Silas Walker confessed to the bank robbery. It is not even clear, as we have noted, that he was talking about the bank robbery at all, since most of the testimony related to the Hoagie Hut robbery. Even if Silas's alleged statements were admitted at a new trial as a declaration against penal interest, they represent hearsay as to the act of perjury by his sisters, and they apparently would be contradicted by Silas if he were called. In view of the lack of a "confession," the evidence relied upon is probably impeaching only, and some of it should have been available before trial. As we view it (and see infra), that evidence is not sufficient in force that it would probably result in an acquittal if admitted at a new trial. We note in this connection the defense was already given broad leeway at the original trial in impeaching the Walker sisters,
so that the evidence would only have been cumulative. See United States v. Rutkin, supra.
In evaluating the issue whether a new trial would probably produce an acquittal, we must consider the evidence introduced at trial. United States v. Memolo, 72 F. Supp. 747 (W.D. Pa. 1947). In our Memorandum Opinion denying the defendants' motion for new trial, we summarized that evidence and observed that the evidence was strong; that evidence included eyewitness identification in addition to the testimony of the Walker sisters. Our overview of the total evidence persuades us that the result at a new trial would most probably be the same. Moreover, the facts adduced concerning the Hoagie Hut robbery are not material to issues involved in the previous trial, particularly in the absence of evidence that the Walkers had "fingered" Bostic and Bradby for any crime; the common thread theory failed completely. Thus, the criteria for granting a new trial on the ground of newly discovered evidence, as set forth in United States v. Craft and United States v. Rutkin, supra, have not been met.
Following the May 24 hearing, Bradby submitted two affidavits from neighbors supporting the alibi which he had attempted through other neighbors to prove at trial. These affidavits are cumulative only and would not, in our view, affect the result at a new trial. In any event, they are not "newly discovered," for they would have been available through the exercise of due diligence at the time of trial. United States v. Rutkin, supra ; United States v. Derosier, 141 F. Supp. 397 (W.D. Pa. 1950).
Being satisfied that defendants have not met their burden in connection with their motion for new trial on the ground of newly discovered evidence, and that their trial was fundamentally fair, we enter the following Order.
And now, this 6th day of June 1973, Defendants' motion for a new trial on the ground of newly discovered evidence is denied. Defendants shall appear for sentencing on Friday, June 15, 1973, at 9:30 a.m. in Courtroom 14.