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filed: August 21, 1989.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal at No. 1016-87.


Mark S. Guralnick, Broomall, for appellant.

Dennis C. McAndrews, Asst. Dist. Atty., for Com., appellee.

McEwen, Montemuro and Kelly, JJ. Kelly, J., files a concurring statement.

Author: Montemuro

[ 387 Pa. Super. Page 115]

The appellant, Wayne O'Brien Aultman, appeals from the judgment of sentence rendered against him, claiming that the trial court erred when it denied his motion in arrest of judgment or for a new trial based on: (1) after-discovered evidence; (2) insufficient evidence; (3) counsel's failure to seek a severance; (4) the absence of the words "without her consent" on some of the verdict slips, and (5) the quashing of his subpoena directing the Women Against Rape (WAR) to disclose its records concerning the victim. Although we

[ 387 Pa. Super. Page 116]

    find no error as to the first four issues the trial court's decision with respect to the fifth issue constitutes reversible error.

On January 29, 1987, the appellant was invited to eat dinner at the victim's home by the victim's husband. After putting her children to bed, the victim watched television in the living room, while her husband and the appellant attempted to fix a lamp in the dining room. She went upstairs to bed about one o'clock in the morning. Her husband joined her a few minutes later and attempted to have sexual intercourse with her. When his attempt failed, he ordered her downstairs, where he tried to have sexual intercourse with her on the dining room floor. When this also failed, he called to the appellant, who was sleeping on the living room sofa, and invited him to have sex with the victim. The victim's husband ignored her protests, and restrained her, while the appellant proceeded to have vaginal and anal intercourse with the victim. When the victim screamed in pain at this latter intrusion, the victim's husband began hitting the appellant. After the appellant left, the victim's husband demanded that she allow him to have anal intercourse with her. When she refused, he severely beat her. The victim later fled with her children to the safety of her father's home. The next day she filed charges against her husband but only in regard to the beating. Two weeks later, she filed charges against both her husband and the appellant regarding the sexual assault.*fn1 The appellant was charged with and convicted of rape,*fn2 involuntary deviate sexual intercourse,*fn3 indecent assault,*fn4 simple assault,*fn5 and four counts of criminal conspiracy.*fn6 After denying the appellant's post-trial motions, the

[ 387 Pa. Super. Page 117]

    trial court sentenced him to serve a total of six to twelve years in a state correctional institution. He appeals.

The appellant's argument that he is entitled to a new trial, based on evidence discovered after the trial, is without merit. In order for us to grant the appellant a new trial on the basis of after-discovered evidence, the appellant must establish that the evidence: (1) was discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching the credibility of a witness, and (4) is of such a nature and character that a different verdict will likely result if a new trial is granted. Commonwealth v. Satzberg, 358 Pa. Super. 39, 45, 516 A.2d 758, 761 (1986) (quoting Commonwealth v. Valderrama, 479 Pa. 500, 505, 388 A.2d 1042, 1045 (1978)). The appellant's after-discovered evidence was to have been supplied by a neighbor named John Trill, who, according to the appellant, would have testified that: (a) the victim spoke to him after the incident about the beating but did not mention the sexual assault; and (b) the victim wanted to remove her husband from her life due to her new lifestyle, new boyfriend, and new allegiance to a different group of friends. This evidence fails to meet the standard required for the grant of a new trial, first, because it could have been obtained prior to trial by the exercise of reasonable diligence. Had defense counsel questioned the victim's neighbors about their contacts with the victim, this evidence would have been uncovered. Further, Mr. Trill attended the trial and, therefore, was available at all times to defense counsel. Second, even if this evidence was not ...

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