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COMMONWEALTH PENNSYLVANIA v. DAVID BORELLI (07/02/81)

filed: July 2, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
DAVID BORELLI, APPELLANT



No. 1155 October, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, at No. 78-11-1645/1649.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Shertz and Wieand, JJ.

Author: Wieand

[ 288 Pa. Super. Page 320]

David Borelli was tried non-jury and found guilty of arson,*fn1 risking a catastrophe,*fn2 recklessly endangering another person,*fn3 and incendiary devices,*fn4 arising from the throwing of a firebomb at the home of Sharlene Lerner. He contends

[ 288 Pa. Super. Page 321]

    that trial counsel was constitutionally ineffective because he failed to discover certain evidence prior to trial. We find no merit in this contention and affirm the judgment of sentence.

At trial, the Commonwealth relied upon the testimony of Sharlene Lerner and two of her friends, who testified that, on November 15, 1978, they had observed appellant hurl a firebomb in the direction of their home. After the explosion, the spot was marked by broken glass. Other evidence established a long-standing neighborhood dispute between appellant and the three complaining witnesses. There was also evidence that two days prior to the incident appellant had threatened to blow up the home in which the girls resided. Two days after the firebombing a search of appellant's garage revealed five glass containers and two plastic jugs, all of which contained flammable petroleum distillate. Although appellant denied the incident, the trial judge found his testimony unworthy of belief.

On direct appeal, when appellant made an allegation of ineffective assistance of counsel for the first time, this Court remanded for an evidentiary hearing limited to the issue of trial counsel's stewardship. Evidence produced at such hearing demonstrated that trial counsel had engaged a private investigator, who obtained from the District Attorney a copy of the police investigation report prepared on November 17, 1978. Neither the District Attorney nor defense counsel was aware prior to trial that when Sharlene Lerner had first complained of the incident on November 15, 1978, a police report of the complaint attributed to her a description of the incident as "causing disturbance and harassing." The police officer who took the complaint conceded during the evidentiary hearing that reference may also have been made by the caller to a "firebombing" but testified that he could not recall the use of that word. Appellant contends that the failure to discover this initial report rendered trial counsel's assistance ineffective.

The evidence relied upon by appellant does not constitute after-discovered evidence sufficient to entitle appellant

[ 288 Pa. Super. Page 322]

    to a new trial. After-discovered evidence is a basis for a new trial if it "(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); Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786, 788 (1971). Appellant concedes that the evidence which he discovered after conclusion of the trial is inadequate to warrant the grant of a new trial. He contends, however, that the description of the incident recorded on the initial police report is inconsistent with the trial testimony of the Commonwealth's ...


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