Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1972, No. 479, in case of Commonwealth of Pennsylvania v. Roosevelt Peoples.
Michael J. Stack, Jr., Christian T. Mattie, III, and O'Halloran, Stack & Smith, P. C., for appellant.
Judith Dean and David Richman, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones concurs in the result. Mr. Justice Eagen concurs in the result. Mr. Justice Nix concurs in the result.
Appellant, Roosevelt Peoples, was indicted for carrying a concealed deadly weapon, unlawfully carrying a firearm and murder. On September 20, 1972, appellant, represented by counsel, entered a guilty plea to a general charge of murder and was found guilty of murder in the second degree. The other indictments were nolle prossed. No direct appeal was taken from the judgment of sentence. On January 31, 1973, appellant filed a Post Conviction Hearing Act petition. A hearing on the petition was held and it was denied. This appeal followed.
Appellant first alleges that the Post Conviction Hearing Act court erred in not allowing him to withdraw his guilty plea on the basis of after-discovered evidence, consisting of the testimony of a witness who, appellant contends, would testify that the killing was done in self-defense. The Commonwealth first contends that, as a matter of law, the presence of such evidence alone should not entitle appellant to withdraw his guilty plea.
In numerous cases, most recently in Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973), we held that a court should allow the withdrawal of a guilty plea after sentencing to correct a manifest injustice to the defendant. The first issue thus presented by the case is whether a defendant has met the requirements of Starr, supra, if he has produced after-discovered evidence which would have entitled him to a second trial if he had gone to trial originally rather than pleading guilty. We are of the opinion that any after-discovered evidence which would justify a new trial would also entitle a defendant to withdraw his guilty plea. It would be incongruous to allow a defendant a new trial
on the basis of after-discovered evidence when he has already had one trial, but to deny him a new trial on the basis of such evidence merely because he had originally decided not to go to trial, but plead guilty, perhaps because he did not have the additional evidence.
In Commonwealth v. Bulted, 443 Pa. 422, 279 A.2d 158 (1971), we quoted Commonwealth v. Schuck, 401 Pa. 222, 164 A.2d 13 (1960), wherein we set forth the standard for the grant of a new trial on the basis of after-discovered evidence: "In order to justify the grant of a new trial on the basis of after-discovered evidence, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result." At Page 229.
The question thus becomes, has appellant met this standard? The Commonwealth argues that appellant did not show that the evidence, testimony of Joseph Garnett, could not have been obtained earlier if appellant had exercised due diligence. Appellant and his counsel did employ a private investigator to locate Garnett, but since appellant did not know Garnett by name, the investigator could not find him. The Commonwealth argues that since the name of the missing witness was mentioned in a statement given by Dennis Camps, another Commonwealth witness, that proves appellant was not diligent. However, Camps' statement was not available to appellant, nor could he have used pretrial discovery to obtain it. See Pennsylvania Rule of Criminal Procedure 310, adopted June 30, 1964, effective January 1, 1965. The first time the Camps' ...