NO. 298 PITTSBURGH, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Blair County, at C.A. No. 442 of 1977.
John Woodcock, Jr., Hollidaysburg, for appellant.
Oliver E. Mattas, Jr., Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.
Cavanaugh, Montemuro and Van der Voort, JJ.
[ 302 Pa. Super. Page 289]
A jury found appellant guilty of kidnapping, indecent assault, simple assault, involuntary deviate sexual intercourse, recklessly endangering another person, terroristic threats, and crimes committed with a firearm. Post-trial motions were refused and appellant was sentenced to terms of imprisonment of 7 1/2 to 20 years on both the charge of kidnapping and involuntary deviate sexual intercourse, the sentences to run concurrently to each other. As to the other charges the court imposed a total period of probation of 7 years to run consecutively to the period of incarceration.
This appeal raises four contentions as to alleged errors during the trial, and a fifth contention that a new trial should have been granted on the basis of after discovery evidence. We will discuss that last contention first.
According to the prosecution's witnesses, on May 25, 1977, between the hours of 1:00 P.M. and 2:30 P.M., appellant kidnapped at gun-point, the female victim from a shopping complex in Logan Township, Blair County. He took her in her own car into a hilly rural area where he forced her to submit to various sexual acts; and then drove back with the victim in the same car to the area from which they started. Appellant denied completely the kidnapping and the assaults.
After the return of the guilty verdicts, appellant filed post-trial motions. On July 25, 1978, he filed a Supplemental Motion for a New Trial and in Arrest of Judgment averring that one James Culley had "come forth and indicated that on the date of May 25, 1976 (corrected later to 1977) at or about the hour of 2:45 P.M.," he had had sexual relations with the victim with her consent.
[ 302 Pa. Super. Page 290]
Judge Campbell ordered a hearing to take testimony as to the Supplemental Motion, which took place on October 4, 1978. At that time appellant testified that he had become acquainted with Culley while incarcerated in the Blair County Prison before trial and Culley indicated he knew the victim and her brother. After the trial when appellant was again incarcerated Culley told him for the first time, that he had had intercourse with the victim on the day of the alleged kidnapping and assault at 2:30 to 2:45 P.M. Culley was called as a witness; he testified that he met appellant in the Blair County Prison, and had seen the victim "on different occasions". He refused to say anything more as to the victim on the ground it might tend to incriminate him. Appellant's trial counsel, William J. Haberstroh, testified that he had interviewed Culley in the prison; that Culley stated he had sexual relations, for money, with the victim in a wooded area behind the commercial complex at about 2:45 P.M. on the date in question. Culley had executed a notarized statement to the same effect, which was received into evidence. The Commonwealth presented evidence to the effect that Culley was at work at the time in question. Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786 (1971) sets forth the four criteria for evaluating after-discovered evidence. It must:
1) have been discovered after trial;
2) not merely be corroborative or ...