Commonwealth v. BrownCommonwealth v. Brown
- Reporters:
- , ,
- Before:
- Lipez
In a jury trial, appellant was convicted of possession of a controlled substance (marijuana) and possession of a controlled substance with intent to deliver. Post-verdict motions were timely filed. The court below arrested judgment on the charge of possession with intent to deliver, since it had not been charged in the original information, but only added by amendment, in violation of
Appellant first contends that, when a co-defеndant at trial invoked his fifth amendment privilege and refused to answer appellant’s cоunsel’s questions, the trial judge should either have ordered the co-defendant to testify, or granted a severance of appellant’s trial. Obviously, the court could not violatе the co-defendant’s fifth amendment right by forcing him to testify; hence, if appellant was to rеceive relief at all, it would be by way of severance. However, appellаnt could have, but did not, request a severance in a pretrial motion. “All pretrial motions for relief shall be in writing and, unless otherwise required in the interests of justice, shall be presentеd together in one omnibus pretrial motion.”
Appellant alsо asserts that the co-defendant’s testimony constitutes after-discovered evidence which was not available at trial. As Judge Garb’s opinion notes, when a co-defendant invоkes his fifth amendment privilege at trial, his testimony meets the requirement that after-discoverеd evidence must have been unavailable at trial. Commonwealth v. Mervin, 263 Pa.Super. 498, 502, 398 A.2d 687, 689 (1979). 1 However, in order to entitle appellant to a new trial, after-discovered evidence must meet other requiremеnts besides unavailability. We agree with Judge Garb that appellant is not entitled to a new trial in order to present the co-defendant’s testimony, not only because it would have been merely cumulative of appellant’s testimony, but also because it was not likely tо compel a contrary result. See Commonwealth v. Ryder, 488 Pa. 404, 408, 412 A.2d 572, 574 (1980). Appellant’s brief does not even argue that all the requirements for a new trial on the ground of after-discovered evidence were met; indeed, it concedes that they were not.
Appellant’s next argument is an identical attack on the sufficiency of the same search warrant involved in the *175 appeal of three of appellant’s co-defendants. Commonwealth v. Luddy, 281 Pa.Super. 541, 552-60, 422 A.2d 601, 608-11 (1980). We adopt Judge Spaeth’s excellent discussion in rejecting this claim. Id.
Appellant’s last two claims arе that the trial judge improperly considered the conviction for possession with intent to deliver, which had been overturned, in sentencing on the conviction for simple possession, and that the judge failed to give an adequate statement of reasons for the sеntence, as required by
Commonwealth
v.
Riggins,
474 Pa. 115, 377 A.2d 140 (1977). While appellant filed a timely motion to modify sentence undеr
Judgment of sentence affirmed.
Notes
. Although only three of the five pаrticipating judges joined the majority opinion,
Mervin
would appear to be precedential.
See Commonwealth v. Mason,
456 Pa. 602, 604, 322 A.2d 357, 358 (1974). The Supreme Court’s more recent prоnouncements on the subject have been somewhat confusing.
See Commonwealth v. Sanabria,
487 Pa. 507, 410 A.2d 727 (1979) (3-3 split on whether a cо-defendant’s invocation of the fifth amendment makes his testimony unavailable for purposes of section 3(c)(13) of the Post Conviction Hearing Act,
. We may find the issue waived by failure to present it by the proper procedure in the court below, even though the Commonwealth has not argued in this court that the issue was waived. Commonwealth v. Drake, 489 Pa. 541, 544-45, 414 A.2d 1023, 1025 (1980).