No. 1809 Philadelphia, 1981, Appeal from the Judgment of Sentence of June 30, 1981 in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 1215-1219 December Term, 1979.
Elkin A. Tolliver, Jr., Philadelphia, for appellant.
Eric I.B. Beller, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cavanaugh, Rowley and Watkins, JJ. Cavanaugh, J., concurs in the result.
[ 317 Pa. Super. Page 141]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, by the defendant-appellant, Kenneth Benson, after conviction by a jury of second degree murder, burglary and unlawful theft. Post-trial motions were denied and he was sentenced to life imprisonment on the second degree murder charge. This appeal followed.
The evidence supporting the conviction consists of the following: The defendant who lived in a neighboring house to the victim entered the victim's home surreptitiously on the evening of Sunday, November 25, 1979. He was discovered by eight year old Sean Isreal behind the couch in the living room where the defendant was hiding. The defendant took Israel by the neck and throttled him. The boy died as a result of the beating. The victim's dog came to his aid, but the defendant killed the dog by stabbing and choking it. The victim's older brother came home and knocked at the front door. The defendant fled out of the home by forcing open a back door. He ran from the back door of the victim's home to the side entrance of his own home. He
[ 317 Pa. Super. Page 142]
was seen so doing by two young girls who were passing, Wanda Bracey and Jessica Madison, who testified that they saw him leave the back door of the victim's house and enter his own home. He entered his house just as Sean's mother started screaming when she discovered the brutal murder. At trial the defendant and his father testified that he was in his own home all that evening.
On appeal the defendant raises the following questions: (1) that he was entitled to a new trial by virtue of after-discovered evidence; (2) that his confession was the product of an unlawful arrest; (3) that his arrest was not based on probable cause; (4) that his confession was the fruit of unnecessary delay and coercion between the time of arrest and arraignment; (5) that the court below improperly excluded defendant's evidence at trial; (6) that the court improperly admitted into evidence a veiled reference to a polygraph test and (7) that defendant's counsel was ineffective.
In this case the after-discovered evidence claimed were the affidavits of two sisters and a cousin of the defendant who could well have been called as witnesses at trial. The claim was that these witnesses talked to the defendant at times variously named between 6:00 p.m. and 6:35 p.m. on November 25, 1979. The times fixed conflict with the times fixed by the father and defendant and with the witnesses.
Such evidence is admissible on the following conditions: "In order to justify the grant of a new trial based on after-acquired evidence, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility and must be such as would compel a different result." Commonwealth v. Schuck, 401 Pa. 222, 164 A.2d 13 (1960).
Unless there has been a clear abuse of discretion, the refusal by the court to grant a new trial on the basis of after-discovered evidence will not be disturbed. Commonwealth v. Tervalon, 463 Pa. 581, 589, 345 A.2d 671, 675 ...