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COMMONWEALTH v. PRESTON (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
PRESTON, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1971, Nos. 124 to 128, inclusive, in case of Commonwealth of Pennsylvania v. Carl Preston.

COUNSEL

Barry H. Denker, and Shuman, Denker & Land, for appellant.

David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 230 Pa. Super. Page 468]

The sole issue in this appeal is whether the lower court erred in denying appellant's petition for post-conviction relief on the ground that after-discovered evidence had been obtained requiring a new trial.

On February 22, 1972, appellant was tried and convicted on the charges of sodomy and assault by a prisoner. The Commonwealth's chief witness, the complainant,

[ 230 Pa. Super. Page 469]

    testified that on the night in question the appellant cornered him in their cell, swung a razor at him, and then committed sodomy upon him. The incident was not reported until three days later. The only other witness against the appellant was one Charles Bartlett, who allegedly witnessed the occurrence. Bartlett, himself awaiting trial on the charge of committing sodomy on the person of the complainant, admitted that he was testifying so that his case would be "given consideration." The defense put on several prison guards, who were on duty the night of the alleged incident. Each testified that they neither heard nor saw anything unusual take place that night.

Sometime after the trial, the assistant district attorney who had been assigned to try the case against the appellant conducted his own investigation. He came to the conclusion that the appellant was innocent. On January 28, 1974, the appellant filed a petition for post-conviction relief alleging the discovery of after-discovered evidence. Without stating the content or basis for the evidence, appellant alleged that there was evidence that "would have affected the outcome of the trial had it been introduced." No allegations were made that the evidence was not available at time of trial, but, that Mr. Norris Gelman, the assistant district attorney at time of trial, was "ready and willing to testify on the petitioner's behalf and to introduce said exculpatory evidence." The Commonwealth's Answer set forth the following, in relevant part: ". . . The Commonwealth acquired, after trial in this case, certain information which might have contradicted the testimony of the complainant, Freddie Moultrie, concerning past prison complaints which he filed against various other inmates. The Commonwealth avers that, although this evidence would contradict Mr. Moultrie's trial testimony, there is no way of ascertaining whether such information would have affected the outcome of petitioner's case."

[ 230 Pa. Super. Page 470]

Despite the joint request of defense counsel and the District Attorney's Office for "a hearing on the above matter since he has alleged facts, which if proven, would entitle him to relief . . . .", the lower court denied appellant's petition without an evidentiary hearing.

In Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786 (1971), our Supreme Court reiterated the long-established requirements for relief on the basis of after-discovered evidence: "'. . . A new trial in a criminal case will be awarded on the ground of after-discovered evidence where the evidence in question (1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and ...


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