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COMMONWEALTH PENNSYLVANIA v. SANFORD BERNSTEIN (09/12/86)

filed: September 12, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
SANFORD BERNSTEIN, APPELLANT



Appeal from Judgment of Sentence, Court of Common Pleas, Criminal Division, Dauphin County, No. 836 C.D. 1979.

COUNSEL

John J. O'Brien, West Chester, for appellant.

James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Cavanaugh, Cercone and Hoffman, JJ.*fn*

Author: Cavanaugh

[ 357 Pa. Super. Page 15]

Following a jury trial, appellant was convicted of solicitation to murder his wife. Part of the Commonwealth's case was the testimony of James Coleman. James Coleman testified at trial that Sanford Bernstein made him an offer

[ 357 Pa. Super. Page 16]

    to kill Bernstein's wife. After Bernstein's conviction, Coleman proferred a recantation of his trial testimony asserting that appellant, Bernstein, was only kidding when he made him the offer to kill his wife. This recantation statement was obtained in the offices of appellant's Philadelphia attorney. Appellant included this in his post-trial motions. Post-trial motions were denied and appellant was sentenced to five to ten years incarceration along with a $25,000.00 fine. Bernstein appealed the denial of his post-trial motions and judgment of sentence. This court vacated the judgment of sentence and remanded the matter for an evidentiary hearing to determine whether the recantation evidence warranted the grant of a new trial. Commonwealth v. Bernstein, 309 Pa. Super. 573, 455 A.2d 1232 (1983). After four evidentiary hearings, the lower court concluded that a new trial was not warranted as ". . . Coleman testified that he did not wish to recant and that his testimony at trial was truthful." Accordingly, the lower court denied appellant's request for a new trial and reinstated his judgment of sentence. It is from the denial of appellant's request for a new trial and reinstatement of his sentence that appellant brings this appeal. Appellant's brief raises numerous issues on appeal. Appellant argues that his conviction should be reversed and dismissed, or in the alternative, that he be granted a new trial. He also argues that in the event that his convictions are not dismissed by this court, that we remand the matter for a sentencing hearing. We affirm the lower court's order and reinstatement of his judgment of sentence.

We first note our standard of review. Recantation testimony is considered extremely unreliable. The trial court should deny a new trial unless satisfied that the testimony is true. As an appellate court, we may not disturb the trial court's decision unless there has been a clear abuse of discretion as it is the trial court's responsibility to determine the credibility of the recantation. Commonwealth v. Gaddy, 492 Pa. 434, 424 A.2d 1268 (1981); Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979).

[ 357 Pa. Super. Page 17]

Appellant's first argument alleges that his conviction is unconstitutional as it was procured in violation of the due process clause, the equal protection clause and the Bill of Rights. More specifically, he argues that the lower court failed to resolve the issue of the credibility of Coleman's recantation and whether it warranted a new trial. We are unpersuaded by this assertion.

A review of the record reveals that the lower court conducted four evidentiary hearings in resolving the issue of Coleman's credibility. The first evidentiary hearing was adjourned by the court, on its own motion, as the court realized it was without jurisdiction at that time to hold the hearing. Appellant had a petition for allowance of appeal before the Supreme Court of Pennsylvania pending at the time of the first hearing. Therefore, the court adjourned the hearing pending the Supreme Court's disposition of the petition. However, we note that prior to adjourning the hearing, Coleman was called to the stand where he stated, "on the advice of my attorney, I plead the Fifth." The court allowed him to plead the Fifth Amendment except with respect to whether the district attorney's office had threatened him with prosecution for perjury if he testified at the hearing. Coleman replied, "it depends what you constitute [sic] as a threat." However, he also stated that the warning not to testify, in light of a potential perjury prosecution, may have come from his own attorney. Thus, the hearing ended prematurely with Coleman indicating that he was not willing to testify and would not affirm the truth of his recant.

The second hearing was held a few months later. It was learned at the beginning of the second hearing that, between the first and second hearing, Coleman had contacted the district attorney's office to "clear this whole mess up." There, after receiving a promise from the prosecutor that he would not be subject to prosecution if he testified truthfully, he swore to the truthfulness of his original trial testimony. He ...


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