No. 2838 October Term 1978, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 1070-1073 April Term 1978
Richard E. Johnson, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn*
[ 277 Pa. Super. Page 102]
Following a non-jury trial in the Court of Common Pleas of Philadelphia, Richard T. Glover, appellant, was convicted
[ 277 Pa. Super. Page 103]
of carrying a firearm on a public street, recklessly endangering another person, simple and aggravated assault, possession of an instrument of crime-generally, and possession of an instrument of crime-concealed weapon. Post-verdict motions were denied, and judgments of sentence of eleven and one-half to twenty-three months imprisonment and a concurrent term of five years probation were imposed. This appeal followed.
Glover argues the trial court erred in refusing to grant a new trial on the ground of after-discovered evidence. The issue was first raised in post-verdict motions and is the only assignment of error now advanced.
The criminal charges against Glover stemmed from the shooting of a woman outside a bar in Philadelphia on March 8, 1978, sometime between 7:00 p. m. and 9:00 p. m. At trial, the victim and her son testified as Commonwealth witnesses and identified Glover as the guilty party. Glover testified in his own defense and denied having a gun at the time or firing any shots. Two individuals who said they saw the incident testified and corroborated Glover.
Because of the after-discovered evidence claim, the trial court conducted an evidentiary hearing before disposing of the post-verdict motions. At the hearing, James Harris, who was not a witness at trial, testified that he and Glover were working together at the bar involved on March 8, 1978; that he was standing right beside Glover when the victim was shot; that Glover did not have a gun and did not shoot at anyone; that he, Harris, and a couple other people fired guns; that, shortly after the incident, he was taken into custody by police; that he was taken to the hospital to be identified, but returned to the bar when he was not identified; that Glover was then arrested and taken to a police station; and, that he, Harris, went to the police station and told the police that he did the shooting.
A statement given to the police by Harris about 4:00 a. m. on March 9, 1978, recorded on a typewriter, and then signed by Harris was ...