Appeal from order of Court of Common Pleas of Luzerne County, Nos. 143 and 143-A of 1966, in case of Commonwealth of Pennsylvania v. Anthony Fernandez.
Francis P. Burns and Bruce S. Miller, Assistant Public Defenders, and James M. Reinert, Public Defender, for appellant.
James R. Anzalone and Jerome L. Cohen, Assistant District Attorneys, Daniel F. Daley, First Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.
[ 232 Pa. Super. Page 20]
This is an appeal from the denial after hearing of relief under the Post Conviction Hearing Act.*fn1 Appellant sought relief in the form of a new trial on the ground that there was new evidence that the witnesses against him at his trial had perjured themselves.*fn2
Appellant was convicted of burglary and of robbery while armed with an accomplice. The witnesses against him were two co-defendants who had pleaded guilty. At the PCHA hearing appellant testified that both these witnesses had recanted and said they had perjured themselves in return for favored treatment, but when he called them at the hearing they refused to answer any substantive questions, instead invoking on advice of counsel their Fifth Amendment privilege.*fn3 A stipulation that certain other witnesses for appellant would have testified that the two former co-defendants had indeed made the statements appellant claimed they
[ 232 Pa. Super. Page 21]
had made was received in evidence, with leave to appellant to argue that the stipulation was admissible to prove the truth of the statements, and to the Commonwealth to argue that it was admissible only to prove that the statements had been made. After considering the evidence Judge Hourigan denied appellant's petition, accompanying his order with a thorough opinion.
Credibility is the key when a new trial is sought on the basis of recanted testimony, and because a recantation, especially by a co-defendant, is so likely to be unreliable an appellate court will not interfere with an order refusing a new trial unless there has been a plain abuse of discretion. Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786 (1971); Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649 (1970); Commonwealth v. Osborn, 223 Pa. Superior Ct. 523, 302 A.2d 395 (1973); Commonwealth v. Sholder, 201 Pa. Superior Ct. 642, 193 A.2d 632 (1963).
Judge Hourigan stated in his opinion that he did not find appellant's story credible. This finding was reasonable, especially since the alleged recantation was not made either under oath at the hearing, Commonwealth v. Coleman, supra, or in an affidavit, Commonwealth v. Scull, 200 Pa. Superior Ct. 122, 186 A.2d 854 (1962).*fn4 It cannot be inferred from the former co-defendants' refusals to testify that they would have recanted their testimony, thereby implicitly admitting perjury, for to draw an inference from an invocation of the privilege against self-incrimination is improper. See Commonwealth v. Jones, 229 Pa. Superior Ct. 236, 327 A.2d 638 (1974). Also, the result of drawing such an inference here would be that appellant would
[ 232 Pa. Super. Page 22]
be granted a new trial without the recantors ...