Nos. 322 and 652 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of October Sessions, 1972, Indictments Nos. 91 and 92, Denying Post-Conviction Relief
Mary Alice Duffy, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Dep. Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
Appellant, James E. Lee, was convicted by a jury of murder in the second degree and aggravated robbery. Posttrial motions were denied and Lee was sentenced to concurrent terms of imprisonment of ten to twenty years on the murder charge and seven and one-half to fifteen years on the related robbery charge. The convictions were affirmed on prior direct appeal to this Court. See Commonwealth v. Lee, 460 Pa. 473, 333 A.2d 871 (1975). In September of 1975, appellant filed a petition under the Post Conviction Hearing Act,*fn1 and relief was denied after a counseled evidentiary hearing. This appeal followed.*fn2 We affirm the decision below.
At the trial of the appellant in 1973 the Commonwealth established its case against Lee through the testimony of two coconspirators, Larry Redmond and Curtis Odum. Their testimony showed the following: On December 3, 1971, Lee, the appellant, Redmond, Odum and one Norman Sweeney agreed to stage a robbery. The following day the four men drove through Philadelphia in an automobile and selected the Diamond Auto Supply Store as their target. Odum parked the car near the premises and remained in it while the other three men entered the store. During the course of the hold-up the proprietor of the store, one Alex Wannerman, attempted to flee to the rear of the building. Thereupon Lee, who was armed with a .32 caliber pistol, fired two shots at Wannerman, wounding him fatally.
Redmond was the only eye-witness to the shooting who testified at appellant's trial. In August of 1975, he
recanted his trial testimony. He asserted that the assistant district attorney had coerced him into testifying as he did in return for a reduction in Redmond's sentence on charges arising out of the same criminal episode. At the PCHA hearing Redmond testified that he had known Lee only vaguely prior to the incident and that Lee had neither been present at nor participated in the robbery-murder. Redmond charged that the prosecuting attorney was well aware that the testimony was untrue but nevertheless used it in order to obtain a conviction. In light of Redmond's recantation testimony appellant argues that he is entitled to a new trial on the ground of after discovered evidence or, alternatively, on a theory that the Commonwealth may not knowingly make use of perjured testimony.*fn3 We find no merit in appellant's position.*fn4
Appellant is correct in his assertion that the knowing use by a prosecutor of perjured testimony is good reason for the grant of a new trial. See Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976); Commonwealth v. Moehring, 445 Pa. 400, 285 A.2d 487 (1971); Commonwealth v. Alston, 430 Pa. 471, 243 A.2d 404 ...