515 A.2d 54 | Pa. Super. Ct. | 1986
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
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).
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 also revealed at great length the reason for his recant in Philadelphia. In a ninety-five page statement,
We have a case that has been remanded to us by the Superior Court not for the purpose of retrying a jury trial, but to the narrow purpose of hearing the testimony of a witness and determining the credibility of that witness’ testimony for the purpose of deciding whether or not a new trial should be granted to the defendant’s petition. That is the extent of our authority to act as described by the Superior Court.
It is now at least clear to the Court that as the Court indicated in its remarks on the record at a prior time, that the witness taking the Fifth Amendment made the issues very clear because there was no recantation for the Court to consider and, therefore, there is no reason to proceed beyond that. The Court is now convinced that in spite of the fact that immunity has been granted to Mr. Coleman, the issue is equally as clear because once immunity was granted the witness testified in substance that he is not recanting, that he is affirming his testimony and again, there is no issue then of credibility with respect to any recantation. The issue before the Court revolves around*19 the petitioner’s obligation to present to the Court testimony to show that there is a credible recantation in order for the Court to consider whether or not a new trial can be granted.
We are satisfied that in the context of these proceedings where the witness has testified that he is not recanting and that he is affirming his testimony, that the petitioner has not sustained his burden with respect to his motion for new trial and that motion must be dismissed. The Superior Court also said that after the evidentiary hearing if the Court is satisfied that the motion for new trial is not granted, then the bail should be forfeited immediately or terminated immediately is the word of the Superior Court and, of course, that would result in the defendant being remanded to complete the remainder of his term.
This Court being satisfied that there has not been a showing that a new trial should be granted, and having denied the motion of the petitioner/defendant, reinstates the sentence of the Court.
We believe that the record speaks very clearly as to whether the lower court complied with the Superior Court’s mandate. In its attempt to provide a full opportunity to be heard the lower court held four hearings. As has been stated often, “Recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true.” Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786 (1971), quoting Commonwealth v. Scull, 200 Pa.Super. 122, 186 A.2d 854 (1962). Accordingly, after Coleman pled the fifth amendment at the first hearing, and certainly after he denied his recant and reaffirmed his trial testimony at the second hearing, the issue as to the credibility of the recant was resolved. There was no issue as to its credibility as Coleman was either unwilling to affirm it, or had expressly denied it. Accordingly, we believe the trial court adequate
First of all, we see no impropriety with the prosecutor taking a statement from a witness who has approached him. It was Coleman who contacted the prosecutor to “clear this whole mess up.” Furthermore, Coleman had been a witness for the Commonwealth throughout these proceedings as he was under a Commonwealth subpoena to appear at the remand hearing. There is nothing to suggest that access to the witness by the defendant’s attorney or other representative was improperly impeded by the Commonwealth.
Nor do we find any impropriety with the prosecutor’s promise not to prosecute made in the District Attorney’s office when Coleman gave his statement. We believe the prosecutor’s commitment to Coleman was a legitimate act within his discretion as a prosecutor.
A prosecutor’s decision not to prosecute an individual, and his ability to make such a promise to an individual, is an essential and vital part of our criminal justice system. We recently stated that:
... whether to charge a person with criminal offense depends upon the exercise of prosecutorial discretion. This discretionary power of the district attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence of probable cause. For this reason, the courts have been wary of interfering with or attempting to supervise the district attorney in*21 the exercise of his discretion in controlling criminal prosecutions.
In Re: Wood, 333 Pa.Super. 597 at 602, 482 A.2d 1033 at 1036 (1984), quoting U.S. v. Cox, 342 F.2d 167 at 171 (5th Cir.1965), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965).
We have further held that a court should not interfere with the exercise of prosecutorial discretion unless there has been a gross abuse of discretion. Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980). We have already clarified what constitutes a gross abuse of discretion. For example, in Commonwealth v. Morris, 267 Pa.Super. 379, 406 A.2d 1091 (1979), we quoted from Shade v. Commonwealth of Pennsylvania, Department of Transportation, 394 F.Supp. 1237 (1975) and stated:
[WJhile there may be instances in which the courts would be entitled to review the exercise of prosecutorial discretion, such review is limited to circumstances involving the deliberate use of such factors as race, religion, or other suspect classifications____ In the absence of such factors, the exercise of prosecutorial discretion does not violate due process or equal protection of the law.
The criminal law is not a computerized system and discretion ... is a necessary and inherent part of the criminal justice system. Prosecutorial discretion in law enforcement ‘is by its very nature exceedingly broad,’ and such discretion is an essential part of the criminal justice system.
Id., 267 Pa.Superior Ct. at 381-382, 406 A.2d at 1092.
In our view, the facts of this ease clearly support judicial deference to the prosecutorial discretion recognized in Shade, supra, and Eisemann, supra. The prosecutor’s decision (and corresponding commitment) not to prosecute was motivated by his desire to obtain truthful testimony from Coleman. The prosecutor’s promise enabled Coleman to testify without fear of otherwise likely prosecution. Fur
Appellant’s final argument challenges his sentence as illegal “ ... in violation of almost every principle applicable to the concept of sentencing and sentencing procedures in the Commonwealth of Pennsylvania.” After a thorough study of appellant’s argument and the record, we are convinced that his claims are without merit. Also, we believe that the lower court properly reinstated appellant’s judgment of sentence following its determination that a new trial was not warranted.
Order affirmed.
. 42 Pa.C.S.A. § 5947 states in pertinent part:
§ 5947. Immunity of witnesses
(b) Request and issuance.—The Attorney General or a district attorney may request an immunity order from any judge of a designated court, and that judge shall issue such an order, when in the judgment of the Attorney General or district attorney:
(1) the testimony or other information from a witness may be necessary to the public interest; and
(2) a witness has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.
42 Pa.C.S.A. § 5947(b).