Appeal from the Judgment of Sentence of May 29, 1986, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 1502 & 1503 September Term 1984.
Jane R. Goldberg, Philadelphia, for appellant in No. 1640.
Jay S. Gottlieb, Philadelphia, for appellant in No. 1792.
JoAnn Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.
Brosky, Wieand and Beck, JJ. Brosky, J., files a concurring opinion.
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At a jury trial, appellants, former Philadelphia police officers, together with one other defendant who has not appealed, were convicted of bribery in official matters and criminal conspiracy. The evidence established that appellants accepted a $400.00 payment to ensure two reputed mob hitmen, Joseph Pedulla and Victor DeLuca, that their bail would not rise above $50,000.00 each. After accepting payment, appellants expedited DeLuca and Pedulla's processing and arraignment, and they were in fact released on $50,000.00 bail each.
Appellants were subsequently brought to trial. DeLuca and Pedulla testified against them. Both appellants inter alia challenge the competency of these witnesses, but only appellant Trudell has preserved any issues for appeal.
Although both appellants filed timely post-verdict motions, those motions simply stated that the verdict was contrary to the law and weight of the evidence. Such boilerplate challenges do not preserve any issues for appellate review. Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 (1983). Although appellant Verdon "reserved
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a right" to file supplemental post-verdict motions, the record does not reveal that he filed them. Therefore, appellant Verdon has failed to preserve any issue for appeal. Commonwealth v. Kelly, 365 Pa. Super. 28, 528 A.2d 1346 (1987). We affirm his judgment of sentence.
Appellant Trudell, while having filed boilerplate post-verdict motions, did seek and obtain court permission to file supplemental motions, thereby preserving those issues contained in his filed supplemental motions. Commonwealth v. Rosko, 353 Pa. Super. 307, 509 A.2d 1289 (1986); Commonwealth v. Holmes.
Appellant Trudell has preserved and raised the following claims on appeal: (1) that witness Joseph Pedulla was incompetent to testify; (2) that the testimony of witnesses Victor DeLuca and Joseph Pedulla was patently unreliable; (3) that certain diagrams used by the Commonwealth were impermissibly distorted; (4) that the prosecutor commented on appellant's failure to testify; and (5) that juror misconduct tainted the entire jury panel. We find all these contentions meritless and so affirm appellant Trudell's judgment of sentence.
Trudell first argues that Commonwealth witness Joseph Pedulla, an admitted murderer and mobster, should have been ruled incompetent to testify because he had committed perjury before the grand jury and allegedly lacked the moral responsibility to tell the truth. Pedulla admitted to lying before the grand jury but was never prosecuted for perjury. He claimed to have lied pursuant to a mob "code of silence" which required him to protect those persons involved in illegal activities with him.
The court conducted an inquiry into Pedulla's competency. In response to the court's questioning, Pedulla repeatedly insisted that since he left the mob his reasons for lying no longer existed. He also acknowledged that taking the oath meant something to him and asserted his belief that only the truth could protect him now.
The trial court found Pedulla competent to testify. In support of this conclusion, the court noted that although in
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the past Pedulla had displayed contempt for the duty to tell the truth, at present he was conscious of that duty and could observe it.
The competency of a witness to testify is a matter within the sound discretion of the trial judge, whose decision will not be reversed absent a clear abuse of discretion. Commonwealth v. Short, 278 Pa. Super. 581, 420 A.2d 694, 696 (1980); Commonwealth v. Chuck, 227 Pa. Super. 612, 323 A.2d 123 (1974). The breadth of that discretion is wide since the trial judge has the opportunity personally to observe and evaluate the demeanor and sincerity of the witness. Commonwealth v. Mangello, 250 Pa. Super. 202, 206, 378 A.2d 897, 899 (1977). Indeed, we have recognized that the better practice where questions of witness competency arise is to permit the witness to testify and then leave the ...