*2 LIPEZ, JJ. and SPAETH, Before MONTGOMERY MONTGOMERY,Judge: convicted, a following jury Bulovas was Edwárd
Appellant intercourse, crimi- sexual trial, deviate involuntary of rape, the denial of Following nal and kidnapping. conspiracy he filed a direct sentencing, appeal. and motions post-trial of sentence. curiam the judgment This court affirmed per A.2d 892 Bulovas, Pa.Super. Commonwealth Allowance of was Appeal Petition for (1977). Appellant’s 2, 1978. December on On May denied our Court Supreme under the Post-Convic- filed a Petition 1978, Appellant 1180-1 et Act, seq. Following tion P.S. Hearing §§ the request- J. Blake denied Edward hearing, Honorable instant relief, appeal. filed the ed and Appellant was convicted began Appellant The incident for which a sixteen-year- abducted when his co-defendant John Horan where He her into a car dragged old at girl gunpoint. area, to an isolated driving After Appellant waiting. to commit oral intercourse and raped both men forced her abduction, her. four hours after initial Approximately the victim was released. tried, prior
Horan convicted and sentenced to Appel- lant’s arrest. his state- Following sentencing, gave Bratsis, ment to Detective Nicholas identifying Appellant co-defendant. Horan then testified at Appellant his trial. Horan’s sole claim on this appeal
was induced to write a letter to Commonwealth Horan’s verifying cooperation board had been concealed from the We “promise” jury. disagree and affirm. *3 the Appellant the PCHA had burden proceeding, Jackson, for relief. Commonwealth v. proving grounds Stokes,
494 Pa. 944 (1981); 431 A.2d Commonwealth v. (1982). A.2d 591 Assistant District Pa.Super. Michael Stiles testified at the PCHA that: Attorney hearing . . . there we could do the nothing about he had I been sentenced .... recall essence him that this was the for him to I telling right thing do. testified, told him if he there was I could nothing about the I thing might sentence. be able to do is write to Parole Board at the time that he the was being considered to tell them in fact that he had testified .... N.T. 44-45. testified that his
Appellant’s recollection was attorney hazy but that he did recall to obtain a commitment from trying the District Attorney’s Office would be of greater benefit to his client. N.T. 16-17. most,
At this evidence establishes that the District office have Attorney’s might agreed confirm that Horan testified a fact which Horan against Appellant, could easily have made known to the board without parole assistance any whatever from the District office. We agree is evidence insufficient to show
with trial court that this the made Horan induce threats were any promises Appellant. his testimony against Affirmed.
SPAETH, J., dissenting opinion. files SPAETH, dissenting: Judge, claim majority with agree do and persuasive, find it contrary, merit. On the without the order of the lower court reverse believe that we should trial. new grant fair trial because is that he was denied a claim Appellant’s had assistant district attorney was not told that an the jury co-defendant, Horan, to write a John promised appellant’s board if he testified against letter to the favorable claim, on The lower court rejected appellant’s appellant.1 following reasoning: who testi- also contends a witness The defendant Horan, trial, one, John changed him at fied offered being result of a “deal” as a merit There is no absolutely District Attorney. who had testi- Mr. Horan was co-defendant contention. crimes any complicity at trial and denied fied Nevertheless, and sentenced. he convicted charged. no than seven and sentence of less He received a prison than fifteen years. one-half nor more add well after the period and we Thereafter, might the defendant’s had the to alter power when the court *4 Horan, co-defendant, to sentence, agreed voluntarily the argues appellant this for waived claim 1. that has The Commonwealth petition. appeal I do failing present or in his PCHA to it on direct suggests appellant Nothing agree. that knew in the record not promise raise the issue on to Horan time to Commonwealth’s duty appeal. to disclose this It was the Commonwealth’s direct Kurtz, Pa.Superior promise Ct. at trial. Commonwealth so, position argue having (1971). it is in no to Not done A.2d promise penalized learning the appellant for about be that should assertion, Also, contrary to the Commonwealth’s afterwards. appellant’s petition. PCHA Petition at was raised in the claim at Petitioner’s Horan did so testify trial. testify Petitioner in crimes It is implicate charged. quite the the clear from a multitude of witnesses called at the eviden- deal, before us there tiary that was no no hearing agree- ments, threats, no no coercion involved. Mr. Horan came motives, forward to for his own but not as a result testify made the District any promise Attorney’s Office. Indeed, hereinabove, co-defendant, Horan, as stated the had that been sentenced and sentence could not already be at the changed time Horan testified or indicated legally to the District Office that he would testify against the Petitioner herein.
Slip at 4-5. op. Although majority the subscribes reasoning, cannot. First, the reasoning suggests the lower court did not understand If appellant claim. were claiming that the quid pro quo Horan’s was a testimony promise to request sentence, then, a short sure, be fact that been already had sentenced when he testified against be appellant would relevant. For then it could said that Horan’s had not been induced promise. Since he had a already long received he would know, testified, when he that the assistant district attorney’s promise had been worthless. But appellant does claim quo was a quid pro promise request short sentence. He claims that the quid pro quo promise send a favorable letter to the board. The fact Horan had sentenced when he testified against appellant is therefore irrelevant. Since Horan had been sentenced, the assistant district attorney could not promise short sentence. But he letter, a favorable which result in might Horan’s release from early prison. The issue is whether that promise induced Horan’s testimony at trial. appellant
Second, argues Commonwealth appellant “presented no evidence that assistant district attorney] [the even a letter wrote such to the Parole Board ... that the ” Board ever such a . . . . received letter Brief for Common- *5 misses the which point,
wealth at 6. This argument equally kept promise its to Horan is not whether the Commonwealth it him making induced but whether the testify. claim the record. In- is
Finally, supported appellant’s deed, his brief that the I with statement agree testi- disregard lower was in conclusion of the court Brief at 13. mony. Appellant’s the court it uncontrovert At the before lower was hearing district had met with Horan attorney ed that assistant that if against appellant, and had him he testified a told be written to the board.2 favorable letter would himself, Stiles, Michael who attorney assistant was district Unit, testified that a Felony meeting then Chief of the Jury counsel, DiMaio, Horan, Richard another assist with his office, took in his Hall place City ant district N.T. attorney 1/3/80, 43, the of Horan to purpose getting testify because Horan “was against important appellant case.” Id. Recounting meeting, his recollection of the Mr. Stiles said: if to Mr.
Q. you Do recall what said you anything at the trial of Edward Bulo- concerning vas? time
A. after the that My recollection tried, after time that Mr. Horan had been Mr. There was indication Horan had sentenced. Mr. me that Mr. Horan had named given to Bulovas I in this matter and responsible party whether testify him down to see he would bringing him that. Mr. Bulovas. I in essence asked about that complaining recall Mr. Horan he initially his wife was probably going got long him, trouble, have, that he have might leave would if endangered he testified. prison probably recollection, have recollection specific telling as a him I didn’t feel for him result really sorry trial, any promises had been made 2. At Horan denied fact 9/21/76, him. N.T. 2.104. of what he had done to the in this complainant case, *6 there was we nothing could do about the sen- tence, he had sentenced. If he was worried about his that we security safety, had had other persons in prison testify against defendants and we’ve been able to them and I recall protect trying to appeal to him that if there was someone else responsi- ble for he, this as well as that he should not be the person fact, in jail. I recall in essence telling him that this was the right for him thing to do. I told testified, him if he there was I could nothing do about the sentence. The only I thing might be able to do is write to the Parole Board at the time that he was being considered to tell them in fact that he had testified, if he did agree And I have testify. recollection of him that I telling didn’t even know whether that would affect the parole decision but if he did that, we’d do that. And I recall him at the end I meeting, don’t know whether he left and came not, back or but I recall him just me telling he would He looked testify. and he was up sort of a pathetic if I recall. He figure, seemed to me to be as acting he was though going to do the right thing, that he would not to testify, about it. I even worry recall like, well, saying something we have to know and you can’t change mind. your Before trial we have to know if you’re firm about this and he said don’t yes, it, about worry he would testify.
Id. 44-45 (emphasis supplied). Mr. Stiles’s corroborated Horan’s coun- sel, Mr. DiMaio:
Q. And can recall you the substance of that meeting? A. Yes. The substance of the meeting was that
District office Attorney’s didn’t really have anything to offer him. He had already been sentenced. don’t recall how much time had but elapsed it was well over of time in period which we go could back to Judge Guarino and get sentence changed. could recall,
And the most that be offered consideration, letter that would be sent to some some of Mr. Horan as far as Parole Board favor almost something status was concerned a little on this—almost hazy terms of—I’m bit testified, not that perhaps threat had he implied was not indicating that he letter could sent Commonwealth, I’m with the although cooperating said or I felt that actually sure whether that was As I attempted have been a possibility. could from the District some of commitment reap type greater be of benefit office which would to the Parole Board so John Horan other than a letter Guarino, of Judge that we back in front get *7 Guarino consider Judge have me have attempt doesn’t sentence, although actually provide the law interpose District office didn’t that, if the done. As I under- it could have been objection, Mr. However, Stiles stand, it’s been done in the past. it was left with was to that so simply not agreeable sending the favor of that we would do you idea if your you Parole Board behalf letter to the know, I don’t testify, you and if didn’t you testified to happen. that was anything going know Id. 16-17. on Mr. commented further DiMaio
On cross-examination implied district attorney’s what he assistant regarded an un did not testify against appellant, threat that if Horan be sent to the board: favorable letter would when Mr. the conversation And the course of Q. during he told either was present that the or one them District Attorneys Assistant for him be to do would they only thing the Parole Board? write to A. Yes. Horan was Mr. say And it be accurate
Q. would one of to him either when it indicated present if he did not District Attorneys the Assistant cooperate they would write to the Parole Board anyway oppose parole?
A. I’m not sure whether this was that Mr. something
Stiles said. I’m not Again, sure or if it was some- that was thing implied from what he said or some- thing that inferred or whether or not there was any kind of threat to that effect. don’t recall. simply Q. We don’t want it, a label on you put but would it
be correct to at least from the say general conversa- tion, conversation, from the tone of the as a you practitioner inferred that that was what either or both were to Mr. Horan and to saying you? objection was
[An overruled.] A. Yes.
Id. at 31-32.
It is settled that due is violated where an process offer of made in leniency for a exchange witness’s testimony made known to the jury. Illinois, Napue U.S. S.Ct. (1959), L.Ed.2d 1217 a co-defendant testified against his accomplice that he had not been made a promise in return for his when in fact the prosecutor had offered to recommend reduction of his sentence. The Court there said: that a principle may State not knowingly use false
evidence, including false testimony, obtain a tainted *8 conviction, in implicit any concept of ordered does liberty, not cease to because the false apply merely testimony goes to the only of the witness. The credibility jury’s estimate of the truthfulness and of reliability witness given may well be determinative of guilt innocence, and it is upon such subtle factors as the possible interest of the witness in testifying that a defendant’s life or falsely liberty may depend. 269,
Id. at 79 at 1177. S.Ct. our has Similarly, Supreme Court held that due process requires that the Commonwealth disclose an offer of lenien- made to a in cy witness for his exchange testimony. Com-
64 Hallowell, 232, 383 (1978).
monwealth v. 477 Pa. A.2d 909 trial, made but at When an offer has been denied such justice of dictate that a defendant’s demands “rudimentary ” Id., trial . . . . granted conviction reversed and a new Accord, 477 Pa. A.2d at 911. Commonwealth at Kurtz, (1971) 280 A.2d (prosecutor Ct. Pa.Superior to accomplice, offer of lenience made had to disclose duty evaluation of credibili- knowledge may jury’s of offer affect of ty witness). here, the where,
This compelling is principle especially to the Commonwealth’s case. witness’s crucial testimony testimony, without Horan’s record shows that victim’s evidence with the crime was the linking appellant had unable to uncertain of him. She been identification at a at which she line-up, with confidence identify appellant said, “I don’t know. Number sort but picked out appellant 9/20/76, N.T. 1.120 looks But I know.” of like him. don’t 9/22/76, N.T. 3.19 of offi- victim); (testimony of (testimony to unable identify appel- cer at had also been She line-up). after the N.T. lant in a a few months incident. photo array 9/22/76, Bratsis). of Detective (testimony Appellant’s 3.44 identified, had N.T. wrongly that he been defense was in 9/22/76, counsel), of defense and argument (closing 3.99 evidence that Horan had defense there was support of this resembled had brother, who lie, appellant, motive for his marriage wife before her been with appellant’s involved 9/21/76, response 2.142-2.144. appellant. in her
defense, argument emphasized closing the prosecutor case,” 9/22/76, in this N.T. nothing “had gain he had 3.131, sentenced, has been and already and that “he and in no way serving sentence, and, affect here, any way, ever Detective fact, he he talked to was sentenced before changed never the Court.” Bratsis, his sentence was 3.127, This also, 3.126, 3.128, id. 3.131. Id. 3.125. See if the had jury have been so persuasive argument might he to Horan that if known the Commonwealth’s letter would be sent testified a favorable appellant, *9 board, to the perhaps in his resulting release early from prison.
I should reverse and grant new trial.
Argued 16, Feb. 1982.
Filed June 1982.
Petition for Allowance of Appeal Denied Oct.