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10/31/97 COMMONWEALTH PENNSYLVANIA v. STEPHEN L.

October 31, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
STEPHEN L. ROMANSKY, APPELLANT



Appeal from the PCRA February 24, 1997, in the Court of Common Pleas of Pike County, Criminal Division, at No. 190-1985. Before THOMSON, J.

Before: McEWEN, P.j., Del Sole & Hester, JJ. Opinion BY Hester, J.

The opinion of the court was delivered by: Hester

OPINION BY HESTER, J.

October 31, 1997, Decided

Steven L. Romansky appeals the February 24, 1997 order denying him PCRA relief. We hold that when the Commonwealth obtains a conviction by using uncorrected testimony that the prosecutor knows to be false, a miscarriage of Justice, which no civilized society can tolerate, has occurred. Thus, we determine that appellant is eligible for relief in this second post-conviction proceeding. Further, following an exhaustive review of the evidence presented at appellant's trial, we have concluded that there is the reasonable likelihood that the false testimony may have affected the jury's verdict as to some of the charges. Hence, under the applicable case law, we are constrained to vacate those convictions and remand for a new trial.

The record reveals the following. On August 27, 1985, appellant was arrested and charged with numerous offenses in connection with three motor vehicles: a 1977 Pontiac Trans-Am, a 1979 Ford Bronco, and a 1977 GMC Truck. He was charged with three counts each of receiving stolen property, removal or falsification of identification number, dealing in vehicles with removed or falsified numbers, and dealing in titles and plates for stolen vehicles, two counts of false application for certificate of title or registration, and one count of conspiracy.

On May 6, 1987, appellant was acquitted by a jury of all charges relating to the 1977 GMC Truck. He also was acquitted of the count of dealing in titles and plates for stolen vehicles relating to the 1977 Pontiac Trans Am. He was found guilty of the remaining charges. On December 17, 1987, appellant was sentenced to a total term of imprisonment of nine to eighteen years. A motion for reconsideration was filed and denied, and on direct appeal, we affirmed. Appellant filed a petition for post-conviction relief in 1990, which was denied. That denial was affirmed on appeal.

On October 10, 1996, appellant filed his second petition for post-conviction relief and alleged the following. He was denied his state and federal constitutional due process rights when the Commonwealth failed to disclose vital impeachment evidence to him. Specifically, the Commonwealth failed to disclose that an investigating grand jury had issued a presentment against its witness, Thomas Smithers, recommending prosecution for various criminal offenses, including charges involving the same 1979 Ford Bronco for which appellant was convicted. The Commonwealth failed to reveal to appellant prior to trial that it had agreed not to prosecute Smithers on the indictment in exchange for his cooperation in testifying at appellant's trial. Appellant stated that he only recently discovered the exhibits and other information revealing the existence of the grand jury presentment and the agreement. *fn1 Finally, appellant alleged that his due process rights to a fair trial were violated when the Commonwealth allowed Smithers to testify falsely that he never was charged with respect to the crimes at issue and that he never agreed to cooperate with authorities by testifying at appellant's trial in exchange for freedom from prosecution.

The PCRA court concluded that the Commonwealth breached its constitutional obligations by failing to reveal the existence of the agreement not to prosecute Smithers and that the Commonwealth had knowingly allowed Smithers to give false testimony by permitting him to deny the existence of the agreement on the stand. However, the PCRA court failed to grant a new trial, reasoning that Smithers's testimony was not material and that the outcome at appellant's trial would not have been different had the jury been made aware of the existence of the agreement. This appeal followed.

After a review of the relevant law, we concur with the PCRA court's analysis of the law. However, we disagree that Smithers's false testimony could not have affected the outcome at trial. We have examined all of the evidence presented at appellant's trial and conclude that there is a reasonable likelihood that the false testimony could have contributed to the verdict. Hence, we reverse and remand.

Initially, we address the question of cognizability in this second post-conviction proceeding. Our Supreme Court repeatedly has ruled:

A second or subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of Justice may have occurred. Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). This standard is met only if petitioner can demonstrate either: (a) the proceedings resulting in his conviction were so unfair that a miscarriage of Justice occurred which no civilized society can tolerate; or (b) he is innocent of the crimes charged. Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099-1100 (1993).

Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773, 777 (1996) (emphasis added).

We believe that this case presents one of the rare instances when the above standards have been met. Herein, appellant does not posit that he is innocent; rather, he argues that when the Commonwealth uses false testimony to obtain a conviction, a miscarriage of Justice has occurred. We agree. *fn2

In Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d 909 (1978), our Supreme Court examined a situation remarkably similar to the one presented herein. Hallowell's fellow perpetrator testified against Hallowell at Hallowell's murder trial. On cross-examination, the fellow perpetrator stated that the only leniency he had been offered in exchange for his testimony was that he had been released on bail. The head of the homicide division of the district attorney's office testified similarly.

Actually, however, the witness had been offered leniency at sentencing. Another assistant district attorney promised to recommend a two-to-eight-year sentence if the witness testified at Hallowell's trial and pled guilty to second degree murder. The witness was sentenced in accordance with the plea bargain after the sentencing court was informed of his cooperation at Hallowell's trial. The court concluded that the district attorney's office was "guilty of perpetrating a falsehood and a fraud upon the Court, jury and people of this Commonwealth" by permitting the false testimony to go uncorrected. It stated:

In Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), the United States Supreme Court confirmed the principle that "a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction." Id., at 269, 79 S. Ct. at 1177. We have similarly held. "It is, of course, an established principle that a conviction obtained through the knowing use of materially false testimony may not stand; a prosecuting attorney has an affirmative duty to correct the testimony of a witness which he knows to be false." Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806, 810 (1977). . .

Id., 477 Pa. at , 383 A.2d at 911 (emphasis added).

The Hallowell court announced these principles despite the fact that there was no evidence that the assistant district attorney who prosecuted Hallowell knew of the existence of the sentencing agreement between the other assistant district attorney and the witness.

Herein, the conduct of the Commonwealth actually is more egregious, as the record establishes that the same prosecuting attorney at appellant's trial agreed not to prosecute the witness. Thus, as announced in Hallowell, the prosecutor committed fraud upon the court, the jury, and the people of the Commonwealth in obtaining this conviction. We therefore hold that there is a prima facie showing that the proceedings resulting in appellant's conviction were so unfair that a miscarriage of Justice which no civilized society can tolerate may have occurred, and appellant's claim is cognizable even though raised in a second post-conviction petition.

We now address the substantive issue presented herein. The record establishes that on May 15, 1985, the third state-wide investigating grand jury recommended that Thomas Smithers be charged with receiving stolen property, conspiracy, obstruction of Justice, intimidation of a witness, removal or falsification of identification numbers, dealing in vehicles with removed or falsified numbers, dealing in titles and plates for stolen vehicles, and false application for certificate of title or registration. Smithers was the owner of a car repair garage.

On January 6, 1986, Smithers and Gregory B. Abeln, Deputy Attorney General for the Commonwealth, entered into a letter agreement. The agreement provides that "subject to the following terms and conditions," Smithers would not be considered a "subject to be charged in the pending investigation involving vehicle theft and insurance fraud in the northeastern part of Pennsylvania." Exhibit B to Petition for Post-Conviction Relief, 10/10/96, at 1. The letter also provides that no information given by Smithers to authorities would be used against him. The commitment by the Office of Attorney General was "conditional upon [Smithers's] providing full, complete, and truthful information regarding the above investigation." Id. The letter also states that Smithers's cooperation would "consist of being available for interviews by law enforcement officials at reasonable times, being available for grand jury and court appearances, and submitting to polygraph examinations . . ." Id. at 2.

The signatory to the letter on behalf of the Commonwealth, Gregory B. Abeln, was the prosecuting attorney at appellant's trial. Not only did Mr. Abeln not reveal the existence of this agreement to appellant, he allowed Mr. Smithers to give false testimony on the stand as to the existence of the agreement. On cross-examination, the following exchange occurred between defense counsel and Mr. Smithers:

Q. Now, some of your records were taken by the State Police, is that correct?

A. That's correct.

Q. What records did they take?

A. They only took the state ...


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