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decided: December 30, 1983.


No. 81-3-473, Appeal from the Judgment of the Superior Court, October Term 1979, Reversing the Grant of a New Trial and Reinstating the Guilty Verdicts Imposed on Information Nos. 1540-43 and 1546-48, by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, November 1978 Session.


John W. Packel, Chief, Appeals Div., Asst. Public Defender, Karl Baker, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Gaele McLaughlin, Barthold, Asst. Dist. Attys., for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., files a dissenting opinion in which Flaherty and Zappala, JJ., join.

Author: Mcdermott

[ 503 Pa. Page 626]


Following a non-jury trial appellant was convicted of aggravated assault, recklessly endangering another person, a weapons offense and conspiracy. After post-verdict motions were filed and argued, the trial court granted a new

[ 503 Pa. Page 627]

    trial on the grounds of after-discovered evidence. On appeal by the Commonwealth a Superior Court panel (Opinion, Watkins, J., joined by Brosky and Montgomery, JJ.) reversed and reinstated the original verdicts. Commonwealth v. Scott, 284 Pa. Super. 440, 426 A.2d 128 (1981). This appeal followed. The pertinent factual and procedural history is as follows:

At trial the Commonwealth's evidence established that on October 22, 1978, Michael Edwards, James Smith and James Browne were the victims of an unprovoked gun attack while they sat in their car. The trio had been followed to their car by four males who gathered around the car and prevented them from driving away. According to the Commonwealth's evidence, appellant struck a handgun inside the car and fired at Browne, while another one of the attackers, Kevin Hill, fired a shotgun blast through the car's front window. When the barrage of gunfire had ceased, a bullet had been lodged in Edward's thigh.

During his trial appellant was identified as one of the assailants by Edwards and Browne.*fn1 Both victims testified that at the time of the attack, appellant was clothed in a dark cap and a brownish red waist length jacket. An hour after the attack, appellant had been apprehended by the police in the vicinity of the scene, clad in identical clothing.

Another Commonwealth witness, James Lark, testified that after the shooting appellant, who was dressed in the above described clothing, approached him and said: "My name is Johnny Scott and I killed someone" and "I'm the one that shot your homies [friends]." On this evidence appellant was subsequently found guilty of the above enumerated charges.

In post-trial motions appellant alleged the existence of after-discovered evidence. The unsworn post-verdict motion alleged that appellant's counsel, Patricia Pierce, was informed by a Mr. Franklin Green, counsel for co-indictee, Kenneth Hill, that his client told him that he could exonerate

[ 503 Pa. Page 628]

    appellant. The motion acknowledged, however, that Hill had previously given contrary sworn testimony at his own trial denying any involvement in the shooting.

An evidentiary hearing was held on July 18, 1979. At the hearing, appellant called Mr. Green in an attempt to elicit from him his client's statement. Invoking the attorney-client privilege, Green refused to testify. The hearing judge suggested to the prosecutor that Hill be offered immunity from prosecution for perjury so he could testify on behalf of appellant. Alternatively, appellant's counsel argued that the attorney-client privilege between Green and Hill had been waived by the former when he disclosed Hill's statement to appellant's counsel. The trial court disagreed. When the Commonwealth refused to grant immunity, the trial court found that although it did not have the power to grant judicial immunity to Hill, a new trial was warranted based on the contents of the unsworn post-trial motion, notwithstanding its double hearsay nature, since the judge considered it to be reliable and credible.

In reversing the order of a new trial and reinstating the verdicts, the Superior Court found that since the proposed statement was unavailable at the post-trial hearing, there was no admissible after-discovered evidence. It further reasoned that even if the alleged after-discovered evidence was produced it ...

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