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COMMONWEALTH v. TOLEDO (12/11/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 11, 1974.

COMMONWEALTH
v.
TOLEDO, APPELLANT

Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1971, Nos. 1599, 1600, and 1601, in case of Commonwealth of Pennsylvania v. Angel Toledo.

COUNSEL

Charles F. G. Smith, for appellant.

Maxine J. Stotland, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First 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 Spaeth, J.

Author: Spaeth

[ 230 Pa. Super. Page 448]

This is an appeal from a denial without hearing of relief under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1974-75). All of the issues raised are rephrasing of issues previously raised on direct appeal when the conviction was affirmed. Commonwealth v. Toledo, 221 Pa. Superior Ct. 752, 289 A.2d 112 (1972), allocatur refused, 221 Pa. Superior Ct. xlv (1972). As the issues have thus been "finally litigated," §§ 4(a) (2) and (3) of the Act, supra, 19 P.S. §§ 1180-4(a) (2), (3) (Supp. 1974-75), appellant is not "eligible for relief," id., § 3 (d), 19 P.S. § 1180-3(d) (Supp. 1974-75); Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973).

Appellant's claim that perjured testimony was used against him is merely a renewal of a previous attack on the credibility of the witness and thus does not present an issue of after-discovered evidence. See, e.g., Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786 (1971).

Order affirmed.

Disposition

Order affirmed.

19741211

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