Louis M. Natali, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case. Roberts, J., filed a dissenting opinion in which Manderino, J., joins.
On September 20, 1972, the appellant, Kenneth Tervalon, was convicted by a jury of murder in the first degree and of conspiracy to commit murder. Motions for a new trial and in arrest of judgment were denied on September 27, 1973. Thereafter, on February 2, 1974, a motion for a new trial was filed on grounds of after-discovered evidence and a hearing for the purpose of taking testimony on the motion was held on March 11, 1974. On August 16, 1974, the motion for a new trial on grounds of after-discovered evidence was dismissed and a sentence of life imprisonment was imposed on the murder conviction. This direct appeal then followed.
The prosecution emanated from the fatal shooting of Phillip Wormley in Philadelphia on the evening of November 22, 1970. The shooting, carried out by a group calling itself the "Black Liberation Army", was apparently in retaliation for Wormley's retention of proceeds obtained by the group during an earlier robbery of a Gino's restaurant.*fn1
At trial, the Commonwealth's case against Tervalon rested primarily on the testimony of Kevin Hall, Willie Williams and Willene Eason. Both Hall and Williams testified that Tervalon was a member of the Black Liberation Army. Williams further testified that, on November 20, 1970, both he and Tervalon were present at and participated in a vote of the Black Liberation Army to execute Wormley. Miss Eason, Wormley's girl friend, testified that on the night of the shooting, Tervalon, with whom she had had previous contact, came to the door of the apartment she shared with Wormley and asked Wormley to go outside. Shortly after the two departed, she heard four gunshots coming from the direction of the driveway behind the apartment building. The police later found Wormley's lifeless body in this driveway.
Tervalon initially contends the trial court erred in refusing to grant him a new trial on the basis of after-discovered evidence. The law is well-settled that "[i]n 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: [cites omitted]". Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A.2d 13, 17 (1960), cert. denied, 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961).
See also Commonwealth v. Cooney, 444 Pa. 416, 417-418, 282 A.2d 29 (1971); Commonwealth v. Bulted, 443 Pa. 422, 428-429, 279 A.2d 158 (1971); Commonwealth v. Mount, 435 Pa. 419, 423, 257 A.2d 578 (1969). Moreover, unless there has been a clear abuse of discretion, the refusal of the trial court to grant a new trial on the basis of after-discovered evidence will not be disturbed. See Commonwealth v. Mosteller, 446 Pa. 83, 89, 284 A.2d 786 (1971); Commonwealth v. Swanson, 432 Pa. 293, 298, 248 A.2d 12 (1968).
A review of the record reveals that Richard Stewart, an indicted co-defendant, was at large in Canada during the time of Tervalon's trial. Stewart was apprehended on October 7, 1972, and returned for trial. Thereafter, both at his own trial and at the trial of Richard Alston, another co-defendant, Stewart testified that he [Stewart] had planned and carried out the Wormley killing and that Tervalon did not participate in any way. Subsequently, at a hearing on the motion for a new trial, Stewart repeated his story, directly contradicting the testimony of the Commonwealth witnesses. He denied Tervalon was ever a member of the Black Liberation Army. He admitted that a vote to kill Wormley had been held, but maintained ...