No. 351 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, January Term, 1976, Nos. 1866-1872.
Burton A. Rose, Philadelphia, for appellant.
Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Montgomery and Lipez, JJ. Spaeth, J., files a dissenting opinion.
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Appellant Edward Bulovas was convicted, following a jury trial, of rape, involuntary deviate sexual intercourse, criminal conspiracy and kidnapping. Following the denial of post-trial motions and sentencing, he filed a direct appeal. This court affirmed per curiam the judgment of sentence. Commonwealth v. Bulovas, 251 Pa. Super. 592, 381 A.2d 892 (1977). Appellant's Petition for Allowance of Appeal was denied by our Supreme Court on May 2, 1978. On December 12, 1978, Appellant filed a Petition under the Post-Conviction Hearing Act, 19 P.S. §§ 1180-1 et seq. Following a hearing, the Honorable Edward J. Blake denied the requested relief, and Appellant filed the instant appeal.
The incident for which Appellant was convicted began when his co-defendant John Horan abducted a sixteen-year-old
[ 301 Pa. Super. Page 57]
girl at gunpoint. He dragged her into a car where Appellant was waiting. After driving to an isolated area, both men forced her to commit oral intercourse and raped her. Approximately four hours after the initial abduction, the victim was released.
Horan was tried, convicted and sentenced prior to Appellant's arrest. Following his sentencing, Horan gave a statement to Detective Nicholas Bratsis, identifying Appellant as his co-defendant. Horan then testified against Appellant at his trial.
The sole claim on this appeal is that Horan's testimony was induced by a Commonwealth promise to write a letter to the parole board verifying Horan's cooperation and that this "promise" had been concealed from the jury. We disagree and affirm.
In the PCHA proceeding, Appellant had the burden of proving grounds for relief. Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981); Commonwealth v. Stokes, 294 Pa. Super. 529, 440 A.2d 591 (1982). Assistant District Attorney Michael Stiles testified at the PCHA hearing that:
Appellant's attorney testified that his recollection was hazy but that he did recall trying to obtain a commitment from the District Attorney's Office that would be of greater benefit to his client. N.T. 16-17.
At most, this evidence establishes that the District Attorney's office might have agreed to confirm that Horan testified against Appellant, a fact which Horan could easily have made known to the parole board without any assistance whatever from the District Attorney's office. We agree
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with the trial court that this evidence is insufficient to show that any promises or threats were made to Horan to induce his testimony against Appellant.