No. 86 January Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia, Criminal Division Nos. 1068-1071 of September Term, 1972.
Abraham A. Leizerowski, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
This appeal is from an order of the Court of Common Pleas of Philadelphia denying appellant, Henry R. Gaddy, relief under the Post Conviction Hearing Act ("P.C.H.A.").*fn1 For the reasons stated hereinafter, we affirm.*fn2
In 1973, appellant was convicted by a jury of first degree murder, aggravated robbery, and conspiracy. After denial of post-verdict motions by the court en banc, appellant was sentenced to life imprisonment on the murder charge and 10-20 years imprisonment on the aggravated robbery charge, sentences to run concurrently.*fn3 On direct appeal, this Court affirmed the judgments of sentence. Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976). In January 1977, appellant filed a pro se P.C.H.A. petition. Counsel was appointed, an amended petition was filed, and after an evidentiary hearing, relief was denied. This appeal followed.
In his P.C.H.A. petition, appellant averred that he is entitled to a new trial (1) because he was denied effective assistance of trial counsel and (2) because Leroy Barnes, a co-defendant who testified against appellant at trial, allegedly testified falsely and has now recanted his allegedly false testimony. In this appeal, appellant has abandoned his claim of ineffective assistance of trial counsel and proceeds solely on the claim that the P.C.H.A. court abused its discretion in refusing to grant a new trial in light of Barnes' sworn statement that he had perjured himself at appellant's trial.*fn4
At appellant's trial, Barnes testified:
that in late December, 1971, he and the appellant were first approached by one Nathaniel Odom with the idea of robbing Martin Dobkin's store, the Green Front Market. Barnes stated that while he himself expressed some reluctance to go along, [appellant] immediately agreed to the proposal. Nothing came of the plan, however, until January 7, 1972, when [appellant] and Odom finally persuaded Barnes to accompany them on their misadventure. That day they met at Odom's house; Odom produced a loaded .32 caliber revolver which he indicated to the others he was taking with him on the robbery.
At about 5:00 p. m., Odom, Barnes and [appellant] left the house and went to a bar across the street from Martin Dobkin's market. Through a window in the bar door they were able to observe the comings and goings of persons to and from the store. At approximately 6:00 p. m., satisfied that no shoppers remained in the store, the three men moved across the street and entered the store. Inside the storeroom, [appellant] and Barnes placed themselves near the checkout counter, where Dobkin was standing, while Odom moved throughout the store removing various items from the shelves. Odom then came to the counter with his "purchases" and began fumbling in his pockets as though looking for money. Instead of money, however, he withdrew the revolver from his pocket ...