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COMMONWEALTH PENNSYLVANIA v. MICHAEL J. STERN (12/10/85)

decided: December 10, 1985.

COMMONWEALTH OF PENNSYLVANIA, EX REL. ANNE M. MEYERS, APPELLEE,
v.
MICHAEL J. STERN, APPELLANT



No. 8 E.D. Appeal Dkt. 1985. Appeal from the Order of the Superior Court at No. 2228 Philadelphia, 1982, Affirming the Order of the Court of Common Pleas of Chester County at No. 21, November Term, 1979. Pa. Super. , A.2d (1984)

COUNSEL

Daniel S. Bernheim, Philadelphia, for appellant.

William Lamb, Nancy C.M. Balliet, West Chester, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Mcdermott

[ 509 Pa. Page 261]

OPINION

This appeal is from an order of the Superior Court, 328 Pa. Super. 557, 476 A.2d 65, affirming the order of the Court of Common Pleas of Chester County which granted appellee a new trial in a suit to establish the paternity of appellant.

Appellee initiated this action on January 3, 1979, in which she alleged the paternity of appellant with respect to her

[ 509 Pa. Page 262]

    child. A trial was initially held without appellant due to lack of notice. Appellant's absence warranted the granting of a new trial which was held on November 26-28, 1979, in which a verdict on behalf of appellant was returned. Appellee filed a motion for a new trial on December 4, 1979. An amended motion for new trial was filed on January 5, 1981, alleging, inter alia, the acquisition of new evidence in the form of testimony as to a telephone conversation between appellant and appellee on March 8, 1980, in which appellant allegedly admitted to perjuring himself at trial. It was further alleged that appellant admitted to being the father of the child in question.

A hearing was held on July 14, 1981, with respect to appellee's motion and a new trial was granted on July 6, 1982. Appellant subsequently appealed the new trial order and the Superior Court affirmed on May 4, 1984.

A short history of the controversy at bar will provide insight to the immediate issue of the after-discovered evidence. Appellant and appellee began to see one another regularly during the summer of 1977. At the time, appellant was a resident of Pennsylvania and appellee a resident of New York. Appellee testified that her first moment of intimacy with appellant occurred in Pennsylvania at the end of July, 1977. She further testified that the act leading to the pregnancy at issue transpired between her and appellant in November of 1977, at the home of her friend, Mark Ginsberg. Appellee claims she had no sexual relations with anyone from June of 1976 to July of 1977, and from then on only with appellant until December of 1977. Appellant denied having had sexual relations with appellee during the established period of conception. These allegations and denials were the extent of the evidence presented to the jury, upon which the jury returned a verdict for appellant.

As previously stated, appellee was granted a new trial on account of after-discovered evidence. Appellee and Mr. Ginsberg testified at an evidentiary hearing to a telephone conversation on ...


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