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decided: November 18, 1986.


Appeal from the Order of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal Division, Dated September 18, 1984, Entered at No. 169 of 1980.


Penn Bradford Glazier, Lancaster, for appellant.

Henry S. Kenderdine, Jr., Dist. Atty., John A. Kenneff, Asst. Dist. Atty., for appellee.

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

Author: Nix

[ 512 Pa. Page 560]


On post-conviction review we are here faced with the question whether appellant, Robert Frey, convicted of first degree murder by a jury and sentenced to death, which sentence was affirmed by this Court on direct appeal, is entitled to a new trial on the basis of after-discovered evidence.

On November 8, 1979, the body of Barbara Jean Frey, the estranged wife of appellant, was discovered in her automobile in a cornfield in Lancaster County. She had been beaten and shot in the chest, and had died from massive hemorrhaging. On December 6, 1979, appellant confessed to the investigating police that he had paid $5,000.00 to one

[ 512 Pa. Page 561]

Charles Zehring, whom he had met through their joint employment at Turkey Hill Dairies, to murder his wife. Appellant told the officers that Zehring had informed him that he (Zehring) would be assisted by another person at the murder, which would be arranged to look like an automobile accident. Appellant was subsequently arrested and charged with homicide and conspiracy.

At trial, appellant repudiated his confession explaining that he had been confused and frightened, and offered the following as a defense to the charges against him. While admitting that he had indeed paid $5,000.00 to Zehring, appellant characterized the payment as being the result of extortion. Appellant claimed that Zehring had an obsessive interest in appellant's marital problems and had conceived a marked dislike for appellant's wife. As a result of this bizarre reaction, Zehring had threatened to harm either appellant, his wife, or his son unless the money was paid. Appellant testified that he paid $5,000.00 to Zehring in an effort to keep Zehring from harming anyone in his family, and completely denied that he solicited Zehring to kill his wife. Zehring, who was incarcerated while awaiting trial on charges stemming from Mrs. Frey's death, was not called as a witness at appellant's trial.*fn1

Not surprisingly the jury rejected appellant's defense and, on May 14, 1980, found him guilty of murder of the first degree for the intentional killing of his wife. Following a separate sentencing proceeding, the jury sentenced appellant to death.

Appellant appealed directly to this court, pursuant to section 9711(h)(1), 42 Pa.C.S. § 9711(h)(1). After considering appellant's claims on appeal and also conducting an independent review of the record to determine if the evidence adduced at trial was sufficient to support the conviction, we affirmed the verdict and judgment of sentence.

[ 512 Pa. Page 562]

(xiii) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.

42 Pa.C.S. § 9543(3)(xiii).*fn4

As was noted in Commonwealth v. Ryder, 488 Pa. 404, 410, 412 A.2d 572, 575 (1980) (Nix, J., concurring), "[a]fter-discovered evidence may provide a basis for relief on direct appeal, see Pa.R.Crim.Pro. 1132(d), Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978), but on collateral attack, a remedy may be obtained . . . where the claim fits within the provisions of section 3 of the PCHA." However, those cases on direct appeal relating to the two elements provided for in section 9543(3)(xiii) may be relied upon in ascertaining the legislative intent in the drafting of the after-discovered evidence provision under the Post-Conviction Hearing Act.*fn5 We have further held that, unless there has been a clear abuse of discretion, the

[ 512 Pa. Page 564]

    refusal of the hearing court to grant a new trial on the basis of after-discovered evidence will not be disturbed. Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975).

We conclude, upon careful examination of the issues in question, that the test has not been met and that the court below was correct in ruling that this evidence did not qualify as after-discovered evidence which would require the disturbing of the judgment of sentence.

Appellant has failed to establish that the information contained in Zehring's statement was unavailable to him at trial. This is not a case of true after-discovered evidence, i.e., new evidence coming to light, after trial, about which the defendant was unaware. If the events recounted in Zehring's statement actually occurred, appellant was obviously aware of them since appellant was a party to these events. Moreover, at the time of his trial appellant was aware that Zehring was in custody awaiting trial for his participation in this matter and thus subject to subpoena if the defense had chosen to call him as a witness. The explanation for failing to call Zehring was that at the time of the trial it was believed that Zehring would be uncooperative because of his, Zehring's, personal situation at the time. The failure to present Zehring was not due to his unavailability, but rather a considered tactical judgment not to use that witness during the trial.

We are not here faced with the question as to whether a potential witness who invokes the Fifth Amendment is properly considered an unavailable witness for the party calling that witness. Compare Commonwealth v. Sanabria, 487 Pa. 507, 410 A.2d 727 (1980) (the Court was evenly divided on whether a co-defendant's invocation of the Fifth Amendment renders his subsequent testimony unavailable for purposes of section 3(c)(13) of the former Post Conviction Hearing Act). In this instance appellant did not attempt to call Zehring as a witness so that it is only speculation that, if called, Zehring would have invoked his Fifth Amendment privileges. We will not permit speculation as to such a critical fact. Commonwealth v. Ryder, supra,

[ 512 Pa. Page 565488]

Pa. at 410, 412 A.2d at 574 (Nix, J., concurring). We now repudiate any implication to the contrary that may have been suggested by the majority opinion in Commonwealth v. Ryder, supra. Thus we need not here address the question of the "unavailability" of a witness who in fact invokes the privilege against self-incrimination.

Not only does the record fail to establish that this testimony was not "after-discovered," it is also not of such a nature and character that a different verdict would likely have resulted. First, the fact that this statement was given by a convicted co-defendant in this crime who only made the statement after he had been sentenced for his participation and therefore had nothing to lose by attempting to aid the cause of his co-conspirator raises a significant question as to its reliability. We have long recognized that post-verdict accomplice testimony must be viewed with a jaundiced eye. Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265, cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976). Second, it must be noted that although Zehring's testimony would have corroborated appellant's claims of duress and coercion, Zehring's proffered testimony contradicted appellant's trial testimony as to a critical point. As previously stated, at trial appellant testified that he did not solicit the killing of his wife but rather paid the $5,000 to avoid harm to her. Zehring's version indicated the money was paid for the purpose of his killing appellant's wife, albeit allegedly as the result of Zehring's urging. Additionally, only $3,000 dollars was paid before the killing and the $2,000 balance was paid after the murder. The $2,000 payment clearly could not have been made to prevent Zehring from harming appellant's wife since appellant was aware that the deed had been accomplished when that payment was made, according to Zehring's version. Thus, Zehring's statement corroborated in an important aspect the pre-trial statement appellant had given to the police at the time of his arrest and which he, appellant, contradicted and attempted to avoid at trial. It is therefore hard to conceive how the admission of this testimony would have been likely to result in a favorable verdict for appellant.

[ 512 Pa. Page 566]

In the alternative appellant argues that a new penalty hearing should be held in order to allow the jury to consider mitigating circumstances as revealed by Zehring's statement.*fn6 It is argued that Zehring's testimony if admitted during the sentencing stage would have established the mitigating circumstance described in section 9711(e)(5). Section 9711(e)(5) provides:

(e) Mitigating circumstances.

(5) The defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution under 18 Pa.C.S. § 309 (relating to duress), or acted under the substantial domination of another person.

It is obvious why appellant has offered the alternative argument. The testimony of the proffered witness, Zehring, although it contradicts the underlying defense that was offered at trial, does in fact corroborate appellant's assertions of duress. Additionally, since it is coming from the individual accused of exerting the pressure, there is naturally an added indicia of reliability that would be inherent in such testimony. Nevertheless, since appellant is proceeding in a collateral proceeding, our law requires that eligibility for relief in such a posture is limited to the statutorily prescribed rules of eligibility for relief set forth in section 9543. 42 Pa.C.S. § 9543. The lynchpin for eligibility in this instance is section 9543(3)(xiii). Thus appellant is still faced with the fact that the proffered testimony of Zehring does

[ 512 Pa. Page 567]

    not qualify as after-discovered evidence for the reasons previously stated. This fact alone is sufficient to defeat this claim.

Moreover, the second prong of subsection (3)(xiii) is also not met. Although the testimony for this purpose corroborates the fact of duress, nevertheless the intrinsic character of the testimony is such that it would be unlikely to influence the jury and thus occasion a favorable decision for appellant. As previously stated, the circumstances upon which this belated statement was made is in and of itself just cause for questioning its validity. Moreover, the sentencing court before whom Zehring appeared in his case recognized that Zehring was a paranoid schizophrenic, a fact fully supported by the record and acknowledged in the opinion of this Court on direct appeal. See Commonwealth v. Frey, supra, 504 Pa. at 444, 475 A.2d at 708. Under these circumstances, the testimony of Zehring on its face, without further corroboration, would be unlikely to change the outcome of the proceeding.

Accordingly, the Order of the Court of Common Pleas of Lancaster County is affirmed.


Accordingly, the Order of the Court of Common Pleas of Lancaster County is affirmed.

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