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COMMONWEALTH PENNSYLVANIA v. MELVIN BROCK (07/02/81)

decided: July 2, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MELVIN BROCK, APPELLANT



No. 80-1-122, Appeal from the Order of Court of Common Pleas of Allegheny County Denying Post-Conviction Relief on May 12, 1980 at CC7700563A - Criminal Division

COUNSEL

John Halley, Court-appointed, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.

Author: Wilkinson

[ 494 Pa. Page 292]

OPINION

Appellant was convicted by a jury of murder of the first degree and of violations of the Uniform Firearms Act. Prose post-trial motions were filed alleging ineffective assistance of trial counsel. Supplemental post-trial motions were then filed by members of the public defender's office. These motions were dismissed and appellant was sentenced to life imprisonment. On direct appeal, the judgment of sentence was affirmed by the Superior Court in a memorandum decision, Commonwealth v. Brock, 270 Pa. Super. 630, 417 A.2d 787 (1979), and we denied allocatur.

In March of 1980, appellant filed a pro se petition under the Post Conviction Hearing Act (PCHA).*fn1 New counsel was appointed and relief was denied following an evidentiary hearing. This appeal followed.

Appellant's PCHA petition avers that his conviction resulted from (1) the unconstitutional use by the State of perjured testimony; and (2) the unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced. We find these claims to be without merit and therefore affirm the decision of the trial court.

Initially, it is alleged that a Commonwealth witness committed perjury at the trial when he testified on cross-examination that he had never been convicted of burglary. Furthermore, appellant asserts that the assistant district attorney was aware of and acquiesced in the prevarication. The burden was upon appellant to prove these facts. Commonwealth v. Lee, 478 Pa. 70, 385 A.2d 1317 (1978).

Assuming, which is not clear, that the Commonwealth witness did give false testimony, there is no indication in the

[ 494 Pa. Page 293]

    record that the assistant district attorney had knowledge of such falsity. We must therefore conclude that the appellant has failed to meet his burden of proof with ...


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