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COMMONWEALTH PENNSYLVANIA v. PATRICK AUGUSTINE MCCLOSKEY (10/12/79)

filed: October 12, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
PATRICK AUGUSTINE MCCLOSKEY, APPELLANT



COUNSEL

Robert P. Rea, Hollidaysburg, for appellant.

Patrick J. Kiniry, Assistant District Attorney, Ebensburg, submitted a brief on behalf of Commonwealth, appellee.

Cercone, President Judge, and Wieand and Hoffman, JJ. Cercone, President Judge, files a concurring opinion.

Author: Wieand

[ 270 Pa. Super. Page 585]

Patrick McCloskey was found guilty by a jury of burglary and robbery. The victim, Mary Wahl, had been rendered unconscious by the intruder and was not able to identify or describe him. The only evidence connecting McCloskey to the several crimes committed was the testimony of Lawrence Cristy. Cristy, an inmate with McCloskey at the Cambria County Prison, testified that McCloskey had admitted involvement in the crime to him. The jury rejected the testimony of several alibi witnesses called by the defense and accepted Cristy's testimony. Following the trial, Cristy recanted. McCloskey's motion for new trial was based primarily, but not exclusively, on this recantation. The court below denied the motion for new trial and imposed sentence. McCloskey appealed.*fn1

[ 270 Pa. Super. Page 586]

A new trial will be awarded on the basis of after discovered evidence where the evidence in question:

"(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted."

Commonwealth v. Valderrama, 479 Pa. 500, 505, 388 A.2d 1042, 1045 (1978). Accord: Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786 (1971); Commonwealth v. Vickers, 260 Pa. Super. 469, 394 A.2d 1022 (1978).

As a general rule, recanting testimony is exceedingly unreliable, and a new trial should not be awarded on the basis of such testimony unless the trial court satisfies itself that the testimony is true. Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979); Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979). This decision is within the sound discretion of the trial court, and it will not be reversed in the absence of a clear abuse thereof. Commonwealth v. Nelson, supra; Commonwealth v. Mosteller, supra.

At a hearing held on appellant's motion for new trial, Cristy testified that he had lied under oath at appellant's trial. He said that he had never had any conversation with appellant about crimes committed at the Wahl home. Subsequently, Cristy entered a plea of guilty to a charge of perjury arising from his false trial testimony. During the guilty plea colloquy Cristy repeated the falsity of his testimony and told the judge, who had also presided at appellant's trial, that he had no knowledge concerning the crimes for which appellant had been found guilty. The court found a factual basis for a plea of guilty to perjury and accepted the same.

[ 270 Pa. Super. Page 587]

Under these circumstances, we are of the opinion that appellant should have been awarded a new trial. The only testimony connecting him with the crime had been recanted. Moreover, the witness against him had entered a plea of guilty to perjury because of the testimony which he had given, and the court had found a factual basis for and had accepted such plea of guilty. These circumstances suggest that appellant's conviction had, in fact, been based on perjured testimony. ...


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