Appeal from order of Court of Common Pleas of Dauphin County, at No. 1555 of 1972, in case of Commonwealth of Pennsylvania v. William David Johnson.
Philip D. Freedman, Assistant Public Defender, for appellant.
Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Concurring Opinion by Cercone, J. Hoffman and Spaeth, JJ., join in this concurring opinion.
[ 228 Pa. Super. Page 365]
This is an appeal from the denial of defendant-appellant's Motions for a New Trial and In Arrest of
[ 228 Pa. Super. Page 366]
Judgment based on a claim of newly discovered evidence.
Appellant was convicted at a trial by jury, of four (4) counts of robbery. At the trial, evidence was presented from which the jury was clearly justified in finding that appellant had in fact committed the robbery. Defendant chose not to take the stand, but did present testimony from a cousin and from his mother. From this testimony, the jury could have inferred that appellant was at home in bed at the time of the commission of the crime.
Some weeks after the filing of his Motions, and in support of them, appellant presented as a supplemental reason, an affidavit from his brother, Donald Johnson, in which Donald stated that he, and not appellant, had committed the robbery. Pursuant to the post-trial motions the trial judge held an evidentiary hearing at which Donald testified under oath that he had committed the robbery. The lower court denied appellant's motions. The issue before this court is whether the "confession" by Donald Johnson is after-discovered evidence which should entitle appellant to a new trial.
"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: Hagopian v. Eskandarian, 396 Pa. 401, 407, 408, 153 A.2d 897 (1959); Commonwealth v. Clanton, 395 Pa. 521, 526, 151 A.2d 88 (1959); Commonwealth v. Green, 358 Pa. 192, 199, 56 A.2d 95 (1948)." Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A.2d 13, 17 (1960), cert. den., 368 U.S. 884, 7 L. Ed. 2d 188, 82 S. Ct. 138. Clearly, the last two requirements of Schuck are met in this case -- the evidence is not cumulative, does not merely impeach credibility,
[ 228 Pa. Super. Page 367]
and the confession (if believed) would likely have compelled a different result (i.e., acquittal of appellant). Was the evidence actually discovered after the trial however, and was the evidence such that with ...