57 A.2d 165 | Pa. Super. Ct. | 1947
Argued October 13, 1947. Richard Hanes, appellant, was convicted of fornication and bastardy. He filed a motion for a new trial averring that after-discovered evidence clearly revealed the verdict was based upon perjured testimony and from the dismissal of that motion, this appeal followed.
The testimony presented at the trial has not been printed as part of the record as it was not taken by the court stenographer. The prosecutrix testified1 the date of conception was Saturday, June 15, 1946, and occurred while she was visiting with appellant's family in St. *208 Mary's, Elk County, Pennsylvania, from May 9, 1946, until June 17, 1946, upon which latter date she returned by bus to her home in Jeannette, Pennsylvania; and, that she and appellant had sexual intercourse many times prior to conception. The defense was an alibi; that the prosecutrix was in Jeannette, her home, at the time of the conception and the defendant was then in St. Mary's.
The appellant denied that he had relations with the prosecutrix. He admitted that she had visited his home in St. Mary's; that he had been in her company from time to time; that he had given her a ring as a Christmas gift; and testified that her last visit to his parent's home in St. Mary's was from March, 1946, until about April 8, 1946. Six witnesses testified that the prosecutrix had visited the home of appellant's parents in March and April, 1946, and had left St. Mary's on or about April 8, 1946.
The Commonwealth offered a rebuttal witness, one Lola Lunn. She testified that on Monday, June 17, 1946, she was riding on a bus from DuBois to Jeanette; that at DuBois she saw prosecutrix alight from a bus which had come from St. Mary's; that the prosecutrix changed buses and boarded the same bus she, Lola Lunn, was riding, and that they rode to Jeannette together. Immediately after trial appellant's counsel investigated Lola Lunn and discovered that this witness was not, in counsel's opinion, on the bus as she stated, but, on the contrary, was working at her job in the canteen of the Elliot Company at Jeannette on the day in question. Appellant's counsel, in support of this finding, submitted three exhibits, (1) affidavit by the employer stating that "on June 17, 1946, Lola Lunn was at her work and employment at the Elliot Company from 7:00 o'clock a.m., in the morning until 3:15 o'clock p.m., in the afternoon, and that she ate her noon day meal at the Elliot Company," (2) her employer's time card showing that on Monday, June 16, 1946, Lola Lunn clocked in for *209 work at 7:00 o'clock a.m. and clocked out at 3:14 o'clock p.m., and (3) Lola Lunn's meal ticket for the same day, signed, presumably, by Lola Lunn. Appellant argues that these exhibits clearly show that the testimony of rebuttal witness, Lola Lunn, was perjured and that the jury's verdict of guilty was therefore based on such perjured evidence. The court below in refusing a new trial concluded: "The jury . . . having considered all the facts outside of the testimony of Miss Lunn still would have been justified in the minds of this Court in arriving at a verdict of conviction."2
A new trial in a criminal case will be awarded on the ground of after-discovered evidence where the evidence in question (1) has been 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 credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted: Commonwealth v. Moskovitz,
From what has been said by counsel both at oral argument and in their briefs, and by the court below, the motion for a new trial was properly dismissed. The after-discovered evidence relied upon by appellant fails *210
in the following respects: (1) viewed in a light most favorable to appellant, its only effect would be to impeach the credibility of a witness; (2) the verdict would not have been affected by its admission; and (3) it is merely cumulative and relates to an immaterial issue. "Usually a new trial will not be granted because of perjury on an immaterial issue or on a collateral issue, nor generally where the false testimony may be eliminated without depriving the verdict of sufficient evidentiary support":Commonwealth v. Ruff,
What was succinctly said by this Court in Commonwealth v.Greenfield,
The assignments of error are overruled, the judgment of the court below is affirmed, and defendant is directed to appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with his sentence or any part of it that had not been performed at the time the appeal was made a supersedeas.