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filed: February 19, 1982.


No. 1817 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Criminal Division, at No. 739 of 1978


John F. Pyfer, Jr., Lancaster, for appellant.

Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.

Spaeth, Brosky and Van der Voort, JJ. Spaeth, J., concurs in result. Van der Voort, J., files dissenting opinion.

Author: Brosky

[ 295 Pa. Super. Page 344]

Appellant, Dohner, was convicted of simple assault,*fn1 aggravated assault,*fn2 recklessly endangering the life of another,*fn3 and criminal mischief.*fn4 Dohner was tried before a jury along with his co-defendant, Stanley Roger Gainer. Dohner was sentenced to not less than six months nor more than twenty months for aggravated assault. For the convictions of simple assault and recklessly endangering the life of another, Dohner was placed on probation for two years. For the conviction of criminal mischief, Dohner was placed on probation for one year. The two probationary sentences were to run concurrently with each other and consecutively with the aggravated assault sentence. Motions for a new trial and in arrest of judgment were made and subsequently denied. This appeal followed. We affirm in part and reverse and remand portions of the trial court's decision.

On March 5, 1978, Marlin McConnell, the owner of the Railroad House, a restaurant in Marietta, Pennsylvania, saw

[ 295 Pa. Super. Page 345]

Dohner and Gainer at the front of his building knocking down a porch railing. McConnell approached Dohner and Gainer in an attempt to stop their actions. McConnell testified that at sometime during the altercation which followed he was struck on his cheek. He said that he saw Gainer pick up a ballaster, presumably one torn from the fence around the porch, shortly before he was initially struck. Gainer, could not have delivered the first blow as McConnell testified that he was holding Gainer at the time he was struck. McConnell stated also that Dohner and another man, Jeffrey Garner, were behind him, out of his sight, when he was struck. McConnell never stated that Garner or Dohner hit him.

The trial court's opinion points out that as a result of all the physical abuse inflicted upon McConnell, that he:

     sustained a fracture of the right zygomatic arch and floor of the right orbit [out of his eye socket]. He suffered immediate effects of numbness of his right cheek and double vision in his right eye. His eye dropped out of place. Surgery was performed in which the bones were replaced and wired in place in one area where the fragments would not hold position. General anesthesia was required. Dr. Levin described the injuries (letter exhibit) as "fairly severe." He opined that it would take a "significant blow" to cause such a fracture and dislocation.

(Trial court's opinion at page two.)

The only evidence which tied Dohner to the crime of aggravated assault was given by McConnell who stated that he saw Dohner walk behind him shortly before he was struck, that shortly after he lost sight of Dohner he was struck on his cheek. He was uncertain whether he was struck by a fist or some object. He also states he did not see Garner until the end of the fracus. The record does not clearly indicate where Garner was during the incident though Garner states that he was some distance from McConnell when the initial blow was struck.

Garner testified at trial that he had no recollection of Dohner's actions during the incident. Gainer stated at trial

[ 295 Pa. Super. Page 346]

    that he hit McConnell once with his hand and never saw Dohner or Garner strike McConnell. Dohner stated that he never hit McConnell. He testified:

Q. At any time on this night did you hit Mr. McConnell?

A. No.

Q. Did you hit him with your fists?

A. No.

Q. Did you hit him with the posts?

A. No.

Q. Did you hit him with anything?

A. No, sir.

The record discloses that, Dohner and Gainer and Garner went to the office of Dohner's attorney, John M. Smith, Esquire, some time after the trial had concluded. Mr. Smith testified at the evidentiary hearing regarding Dohner's post-trial motions that Gainer and Garner substantially altered their testimony regarding Dohner's involvement in the incident during their conversations with him. Smith stated that the altered testimony placed Dohner completely separate from the incident at the time McConnell was struck. However, the record indicates that Gainer and Garner did not substantially alter their trial testimony at the evidentiary hearing. In fact, Gainer went so far as to categorically deny the statements attributed to him by Smith when he testified at the evidentiary hearing.

In Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786, 788 (1971), our Supreme Court stated the standard by which a court shall determine whether a new trial should be granted because of the existence of after-discovered evidence. The court said:

This Court has often reiterated that: ". . .

'A new trial in a criminal case will be awarded on the ground of after-discovered evidence where the evidence in question (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

[ 295 Pa. Super. Page 347]

    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. Coleman, 438 Pa. 373, 376-377, 264 A.2d 649, 651 (1970).

Dohner essentially claims that Gainer committed all the offenses and that he was in no way responsible. Nevertheless, Gainer, whom Dohner claimed originally planned to recant his testimony, did not recant his testimony at the evidentiary hearing. Thus, the trial court had to weigh the testimony of Attorney Smith who testified as to what manner Gainer would recant his testimony against that given by Gainer at the evidentiary hearing and determine which version of the evidence was credible.

We recognize that recanted testimony is extremely unreliable. As our Supreme Court said in Commonwealth v. Nelson, 484 Pa. 11, 13, 398 A.2d 636, 637 (1979):

Recantation testimony is considered extremely unreliable. The trial court is to deny a new trial unless satisfied that the recantation is true and an appellate court is not to disturb the decision unless there is clear abuse of discretion. Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649 (1970). It is up to the trial court to judge the credibility of the recantation. Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d 1292 (1978). We find that it was proper for the court to discredit Hagans' recantation and that there was no abuse of discretion. The trial court's decision is also supported by the other evidence linking appellant to the scene of the crime. See Commonwealth v. Wilcox, 481 Pa. 284, 392 A.2d 1294 (1978).

There was no actual recantation by Gainer in the instant case rather a statement by Attorney Smith that Gainer described to him evidence which if placed on the record would amount to a recantation. Without any discussion of potential hearsay problems related to Smith's testimony, the evidence regarding the substance of Gainer's statements is very unreliable.

When we review Garner's testimony. He said:

[ 295 Pa. Super. Page 348]

Q. Your testimony at trial was -- and correct me if I am wrong -- that you really didn't know where Michael Dohner was during the course of this altercation.

A. During trial?

Q. Yes. When you testified at the trial, didn't you basically state you didn't know where Dohner was?

A. Yes, that's right. At the time I was prying them apart -- yes.

Q. Okay. I believe you also stated you didn't see anybody hit the victim with the post or ...

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