Vincent J. Ziccardi, Public Defender, Philadelphia, for appellant.
T. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., dissents.
Appellant, Raymond Wilson, was found guilty of murder in the first degree after a jury trial in 1956. This Court affirmed the judgment of sentence. Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234 (1959); cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959). Subsequently, a federal court denied appellant's petition for habeas corpus relief because state remedies had not been exhausted. United States ex rel. Wilson v. Rundle, 208 F.Supp. 484 (E.D.Pa.1962). Appellant then sought habeas corpus relief in the Pennsylvania courts averring that a prosecution witness, Edward Nixon, who testified at appellant's 1956 murder trial, had since repudiated his testimony. At trial Nixon had testified as to certain incriminating admissions allegedly made to him by appellant. Relief on the habeas corpus petition was denied without a hearing and affirmed on appeal. Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143 (1963). In 1969, appellant made the same averments in a Post Conviction Hearing Act petition (see Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. 1180-1 et seq.), and was again denied a hearing. On appeal, this Court held that the appellant was entitled to a hearing on his allegation that Edward Nixon had recanted his 1956 trial testimony. Commonwealth v. Wilson, 444 Pa. 433, 283 A.2d 78 (1971). Pursuant to our remand, an evidentiary hearing was commenced at which appellant testified concerning the alleged recantation.
Nixon could not be located, however, and over the next few months the trial court granted several continuances to permit appellant's counsel to locate the missing witness. Finally, on March 24, 1972, the trial court refused to grant any further continuances and denied relief. This appeal followed.
Appellant contends (1) that we should now reverse, as an abuse of discretion, the trial court's termination of the PCHA proceeding, and remand for another evidentiary hearing after allowing more time for appellant to locate the missing witness; (2) that we should grant a new trial on appellant's 1956 murder conviction if, on remand, it should develop that the missing witness cannot be located; and (3) that a new trial should be granted because on the record before us, we should conclude that Edward Nixon gave false testimony at appellant's trial.
In order to justify post conviction relief on the basis of an alleged repudiation of trial testimony by a witness whose testimony at trial was damaging to the appellant, two things have to be shown: (1) that such a recantation had, in fact, been made, and (2) that the recantation was truthful. See Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143 (1963). Appellant in this case has shown neither. Appellant's contentions are based on the assertion that the fact of the alleged recantation had been proven to the satisfaction of this Court in appellant's appeal from the denial of his habeas corpus petition. In 1963, when this Court considered appellant's appeal from the denial of his habeas corpus petition, for purposes of its opinion, it accepted as true the allegation that the witness, Edward Nixon, had recanted his 1956 trial testimony. See Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143 (1963). Appellant now urges us to read that opinion as concluding that the witness had, in fact, repudiated his trial testimony. We do not so read that opinion. There was no hearing held on the habeas corpus petition. In
accepting the averments of the habeas corpus petition as true for the purpose of appellate review, we said, "[w]e accept as an established fact [appellant's] averment that the Commonwealth witness Nixon has not repudiated his trial testimony." Id. at 112, 194 A.2d at 144. At another point in that opinion, we said, "[appellant] alleges nothing in his petition to support the credibility of the repudiation that was not made known in strong terms by the trial court to the jury at trial." Id. at 114, 194 A.2d at 145. There is nothing in the record of this case, from the time of its inception in 1956 through the incomplete PCHA evidentiary hearing held following our remand order in 1971, to the trial court's final refusal of a continuance on March 24, 1972, to indicate that there was ever any evidence, except appellant's testimony, that Nixon had repudiated his 1956 trial testimony. Furthermore, the only time the appellant testified about the alleged repudiation was at an evidentiary hearing held in 1971. At that evidentiary hearing, appellant testified as follows:
"Q. Now the basis of your petition is that he recanted his testimony. In other words, that sometime after the day of the trial he made a statement to somebody that what he ...