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COMMONWEALTH PENNSYLVANIA v. ISAAC GRAHAM (08/27/79)

SUPERIOR COURT OF PENNSYLVANIA


submitted: August 27, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ISAAC GRAHAM, APPELLANT

No. 300 Special Transfer Docket, Appeal from Order Denial of Post Conviction Relief in Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 208 and 210, October Term, 1972

COUNSEL

Eugene E. J. Maier, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 273 Pa. Super. Page 475]

Isaac Graham was convicted of two counts of murder of the first degree and conspiracy by a jury in Philadelphia. He appealed to the Supreme Court of Pennsylvania, which affirmed the judgment of sentence. Commonwealth v. Graham, 467 Pa. 417, 358 A.2d 56 (1976). In substance the Supreme Court decided that the evidence was sufficient to support the conviction, that the district attorney's argument was not prejudicial or inflammatory, and that appellant was not precluded from showing that an important Commonwealth witness, John Graham, was receiving favorable treatment from the district attorney for testifying against appellant. Present counsel appointed to represent appellant in his petition under the Post Conviction Hearing Act, January 25, 1966, P.L. (1965) 1580, Sec. 1 et seq., 19 P.S. Sec. 1180-1

[ 273 Pa. Super. Page 476]

    charges against trial counsel are improper, and if they do not establish ineffectiveness of trial counsel, appellate counsel cannot in any way be faulted for failing to challenge the effectiveness of trial counsel. Appellant has the burden of proving ineffectiveness of counsel as an independent basis for relief in a post-conviction hearing, and he has failed to meet that burden. Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978).

Appellant alleges the existence of after-discovered evidence. This issue was not raised in his petition for post-conviction relief and was not considered by the PCHA court. It is reproduced as an appendix to appellant's brief and relates to testimony given at a proceeding in the United States District Court for the Eastern District of Pennsylvania. Again, it would appear to involve impeachment of the credibility of John Graham's testimony. We are satisfied that if, in fact, there is after-discovered evidence, it would be merely cumulative and add one more attack on the credibility of John Graham. After-discovered evidence is not a sufficient basis for a new trial if it is merely corroborative or cumulative or if it will be used solely for impeaching the credibility of a witness. Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978).


*fn* Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania, and Judge Warren K. Hess of the Court of Common Pleas of Berks County, Pennsylvania, are sitting by designation.


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