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February 5, 1982


No. 1094 Philadelphia, 1980, No. 1095 Philadelphia, 1980, Appeal from the Orders of the Court of Common Pleas of Delaware County, Criminal Division, at Nos. 5666 and 5667 of 1977.

Before Price, Watkins and Montgomery, JJ. Price, J., did not participate in the consideration or decision of this case.


Frank A. Krieger and John Brown were convicted by a jury of unsworn falsifications to authorities, making false reports to law enforcement authorities and conspiracy. Post-trial motions were filed and argued and the lower court granted a new trial in the interest of justice. This appeal by the Commonwealth followed.

The charges arose out of the following fact situation. In January of 1976, Wayne C. May purchased and financed a used diesel truck tractor from Kenworth Trucks Philadelphia, Inc. At the time of the sale, May anticipated that he would obtain a permanent Interstate Commerce Commission lease from Mid-West Emery Freight Lines. When May was subsequently unable to obtain this lease, he asked Kenworth's assistance in reselling the truck. A Kenworth salesman referred Ronald Fogel to May. Fogel and May met in March and attempted to negotiate a sale. To that end, May agreed to let Fogel test drive the truck with the understanding that they would meet the following day at Kenworth to negotiate the sale. Fogel did not return the truck, and May turned again to Kenworth for assistance. Krieger and Brown, both Kenworth employees, tried to contact Fogel or locate the truck. Finally in September of 1976, more than six months after the truck was taken (during which time no payments were made by anyone on the truck), Krieger and Brown caused criminal charges to be filed against Fogel. The charges against Fogel were ultimately dismissed. The charges then filed against Krieger and Brown alleged that they had made false statements to the police and the district justice in connection with the criminal charges filed against Fogel.

After post-trial motions were argued, but prior to any disposition thereon, Appellees' counsel discovered that Ronald Fogel, the Commonwealth's main witness, had a prior criminal record, including convictions of crimes concerning fraudulent testimony and fraudulent transactions. Appellees petitioned for reargument on their post-trial motions on the basis that the Commonwealth failed to produce this record when requested to do so prior to trial.*fn1 Noting that the charges themselves involved the issue of credibility and that Fogel was the alleged victim of the charges against Krieger and Brown, the Honorable Joseph W. deFuria granted Appellees a new trial in the interest of justice.

In addition to challenging the propriety of the grant of a new trial, the Commonwealth, anticipating appellees' arguments, asserts that there was no violation of appellees' rights under Pa.R.Crim.P., Rule 1100.*fn2 Having reviewed the entire record, we find that this issue is not properly before us.

The first supplemental motion filed by appellee Krieger alone alleged a Rule 1100 violation. Subsequent to the issuance of the order granting a new trial, which resulted from Mr. Brown's first and Mr. Krieger's second supplemental motion, a stipulation was approved by the lower court. The Commonwealth, counsel for Mr. Krieger, and counsel for Mr. Brown stipulated and agreed that the order would be considered as having been based upon issues relating to appellees' motions for new trial. As a Rule 1100 claim is properly an issue in a motion for arrest of judgment,*fn3 appellee Krieger, in effect, "stipulated away" any such claim for purposes of this appeal. We, therefore, limit our review to those issues which would properly relate to post-verdict motions for new trial.

We next consider the propriety of granting a new trial to Appellee Brown. The granting of a motion for a new trial is within the discretion of the lower court, and our review is limited to ascertaining whether or not the lower court abused its discretion or committed an error of law in granting Appellee's motion. Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977). The lower court felt that since Fogel's testimony was crucial to the conviction or acquittal of Appellee, that Appellee was deprived of his right to defend himself against Fogel when the Commonwealth falsely asserted that Fogel had no prior criminal record, and Appellee, at the time, had no other way of discovering this record.

On this appeal, the Commonwealth urges reversal of the lower court's order, first, because the convictions were too remote in time to be admissible for impeachment purposes. This is a matter for the trial court to decide. Commonwealth v. Summers, 269 Pa. Super. Ct. 437, 410 A.2d 336 (1979). The Commonwealth argues that previous decisions have held convictions less remote in time than those in the instant case to be inadmissible when used to impeach a criminal defendant. See, e.g., Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). However, the rationale of those cases -- that the use of prior convictions for impeachment purposes must be scrutinized carefully so as not to destroy a defendant's opportunity to take the witness stand and defend himself -- does not necessarily apply to the instant case where the credibility in issue is that of a witness, not a defendant. At any rate, the trial court must have the opportunity to decide this issue.

Similarly, the Commonwealth's argument regarding after-discovered evidence is without merit. In this case, the Commonwealth refused to provide Appellee with Fogel's criminal record despite the fact that Appellee had no other way of discovering said record and despite the fact that Fogel's record may have provided Appellee with a vital link in his defense. It is the conduct of the Commonwealth, and not the after-discovered evidence, that is the basis for the grant of a new trial in the interest of justice. We do not find this to be an abuse of discretion by the lower court and, therefore, affirm the grant of a new trial.

The other stipulated issue concerns the admissibility of a duplicate title for the truck in question. Since we are affirming the grant of a new trial, and we do not know whether the Commonwealth will again seek to introduce this evidence, we believe it would be premature to rule on this issue at this time.

As to both appellees, we affirm the grant of a new trial. We relinquish jurisdiction.

PRICE, J., did not participate in the consideration or decision of this case.

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