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COMMONWEALTH PENNSYLVANIA v. ROY W. MYERS (07/05/79)

decided: July 5, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROY W. MYERS, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. BRUCE A. JOHNSTON, NORMAN L. JOHNSTON, DAVID K. JOHNSTON, APPELLANTS. COMMONWEALTH OF PENNSYLVANIA V. FRANCIS R. MATHERLY, APPELLANT



No. 442 January Term, 1978, Appeal from the Order of the Superior Court of Pennsylvania, No. 978 October Term, 1977, Affirming the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Nos. 833, 835, 836 of 1976; No. 443 January Term, 1978, Appeal from Order of the Superior Court Nos. 1160 and 1482, October Term, 1977 and No. 549, October Term, 1978, Affirming the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Lancaster County at Nos. 841, 842 of 1976, Nos. 839, 840 of 1976, and Nos. 845-848 of 1976; No. 512 January Term, 1978, Appeal from Order of the Superior Court of Pennsylvania, No. 1378 October Term, 1977, Affirming the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal Division, Nos. 849, 851, 852 of 1976

COUNSEL

Michael J. Rostolsky, Lancaster, for appellant in No. 442.

Ronald L. Buckwalter, Dist. Atty., John A. Kenneff, Asst. Dist. Atty., Lancaster, for appellee in Nos. 442 and 512.

James H. Thomas, W. Robert Landis, Lancaster, for appellants in No. 443.

John A. Kenneff, Asst. Dist. Atty., Lancaster, for appellee in No. 443.

Thomas G. Klingensmith, Public Defender, W. Robert Landis, Lancaster, for appellant in No. 512.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.

Author: Manderino

[ 485 Pa. Page 521]

OPINION OF THE COURT

Three appeals involving a total of five appellants have been consolidated in this opinion. Appellants, Roy W. Myers, Bruce A. Johnston, Norman L. Johnston, David K. Johnston and Francis R. Matherly, were tried together on various charges of theft, receiving stolen property and conspiracy arising from five separate incidents involving tractors and other farm equipment. After hearing testimony from a witness convicted of perjury but unsentenced for over five years, the jury convicted all five appellants on various counts. The Superior Court affirmed the judgment of sentence of each appellant and each subsequently petitioned this Court for allowance of appeal. Those petitions were granted, consolidated, and these appeals followed. Appellate Court Jurisdiction Act of 1970, July 31, 1970, P.L. 673, No. 223, Art. II, 17 P.S. § 211.204 (Supp. 1978-79).

Appellants raise various issues but all of them raise the same issue concerning prosecutorial misconduct designed to circumvent the Disqualification Act, Act of May 23, 1887, P.L. 158 § 2(a) as amended, 19 P.S. § 682. The facts are these: The testimony of Kenneth Howell was essential to the prosecution's case. Howell implicated appellants in the commission of the crimes charged. Approximately five years prior to Howell's testimony in this case he had been found guilty of perjury. Post-verdict motions were filed

[ 485 Pa. Page 522]

    and denied. In the normal course of events, Howell would have been sentenced about five years before his appearance as a witness in this case. In fact, a co-defendant of Howell's who was convicted along with Howell of perjury in 1971, was sentenced, after the denial of his post-verdict motions, in 1972. The co-defendant has since served his sentence and been released. Howell was not sentenced, however, until 1976, after he had appeared as a witness against appellants. Howell himself caused a delay in his sentencing for ...


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