Commonwealth v. Johnson
323 A.2d 295
Pa. Super. Ct.
1974
Check Treatment

*1 a the instant “fugitive”, Since in is Brabham, to our decision which arose prior case, enunciated Common- the “exception” controlled A. O’Brien, wealth that Brabham may disputed It 2d 666 (1956). The however, only. Majority, effect has prospective merits of the analyzing without further, goes that “after an under states present law, instant appeal can record in the we case, of the whole instant analysis in the no unfairness to the appellant find fundamental case.” In the a this hearing preliminary denial the above-quoted limited context this appeal, portion as correct; however, is Majority Opinion from mandate tantamount a procedural Brabham enunciates all a to a right a rule that defendants have se per unless this Commonwealth hearing preliminary seeking to determine process waived, weighing associated with denial “prejudice” “fairness” expressly prohibited. this right joins J., concurring opinion. Johnson, Appellant. *2 March Submitted 1974. Before P. J., Watkins, and Jacobs, Hoffman, Cercone, Price, der Voort, Van JJ. D. Freedman, Assistant Public Philip Defender, appellant.

Marion E. MacIntyre, Deputy District Attorney, Zimmerman, and S. LeRoy District for Com Attorney, monwealth, appellee.

Opinion June J., 21, 1974: der Voort, Van from is an the denial of This appeal defendant-ap- for a New Trial In Motions and pellant’s Arrest on a claim of discovered evi- newly based Judgment dence. of four at a trial by jury, was convicted

Appellant counts At the (4) trial, pre- sented from clearly justified which jury the rob- had fact committed finding but did Defendant chose not to take the bery. stand, from mother. a cousin and from his present From inferred that could have jury commis- at home in bed at the time of the sion of the crime. after the of his Motions,

Some weeks filing as a support them, appellant presented supplemental Johnson, an affidavit from his reason, brother, which Donald stated and not he, appellant, mo- committed the to the robbery. Pursuant post-trial tions held evidentiary hearing *3 com- which Donald testified under oath that he had mitted the The lower court denied motions. The issue before this court whether by “confession” Donald Johnson is after-discovered evi- entitle dence which should to a new trial. “In order to of a trial on the justify grant new basis of after-discovered must evidence, been after the trial have discovered and must be such it could not been obtained have at rea by must not be or sonable cumulative im diligence, merely and must be such as would com credibility, peach likely result: v. a different Hagopian pel Eskandarian, Pa. A. 2d 897 401, 407, 408, 153 (1959); Commonwealth 395 Pa. 151 A. 2d 88 521, 526, Com Clanton, (1959); A. Green, 192, 199, monwealth 2d 95 Commonwealth v. Schuck,401 Pa. (1948).” 222, 229, cert. 164 A. 2d 368 U.S. 13, 17 (1960), den., 7 L. 884, Ed. 138. Clearly, 82 S. Ct. last 188, 2d two require are met this ments Bchuch case—the evidence is does not cumulative, merely impeach credibility, and tlie confession (if com- believed) would have likely pelled different result (i.e., acquittal appellant). Was the evidence actually discovered the trial how- after ever, evidence such that with reasonable it could diligence have been out at the trial? brought In Commonwealth v. Hayward, 437 Pa. 263 A. 215, 2d 330 (1970), mother defendant’s re vealed that three other people were in defend allegedly ant’s presence the time of the crime in a other city than the one in which the crime None was committed. of these three witnesses were called defendant. by After counsel for trial, the appellant presented affidavits of these three witnesses an attempt gain new trial on the basis of after-discovered evidence. The Su Court preme said: “We agree with the mo post-trial tion court this is not after-discovered evidence, since the identities these witnesses were known at if not before.” (At page 217)

In Commonwealth v. Foerst, 161 Pa. 53 A. 2d 847 (1947), court denied appellant’s motion for a new trial after where, conviction as sault and at a trial battery which the accused had been positively identified, appellant averred that crime had been committed four men known to him. had failed to Appellant identify these men because alleged professional relationship with them, and the therefore court concluded that “The in court and a fair day trial. If he chose withhold information evidence —in his possession at the time of trial —which might resulted in his he acquittal, be heard to *4 cannot after complain a has jury convicted him____” (At 113-114) case before

In the this court, appellant knew of brother’s “confession” before trial and failed or re- call to the stand a to witness fused known to him, whose in have resulted testimony might acquittal for ap- contention that Appellant’s the pellant. evidence —the tri- the discovered confession Ms brother —was after untenable. al, record the Schuck,

As to the second requirement dili to use reasonable indicates that failed at trial. Appellant to introduce gence the trial. a at should have called Ms brother as witness we William, From the fact that Donald “confessed” to refused to Donald not conclude that have might if Donald had taken if called testify as witness. Even the stand and self-incrim claimed privilege against to ob had an opportunity would have ination, jury serve such as there was between resemblance, doubt been and sufficient have William, might jurors’ raised minds that wouldn’t they had the to duty bring William. Appellant convicted forth evidence Ms behalf. Not did any only appel fail forth this lant to use reasonable diligence bring hear testimony evidentiary but his own evidence, indicated that ing appellant actively sought repress about Ms reaction to questioned such evidence. When him his brother’s confession to testi pre-trial “I told I’ll see fied: don’t about it. what him, worry do in court”. they

In further of our note we support decision, in cMef four some (4) witnesses, whom identified him. In ad defendant, positively knew note that Donald we also Johnson testi dition, might fied at the that he had been evidentiary hearing wear at the time of the beard The ing of the was that the victims who person not their valuables did have a beard. took The judge certainly justified at the hearing discrediting and in denying Donald’s mo court tMs will set Therefore, tions aside the ; order motions. Commonwealth those denying Foerst, (1947). Pa. Superior *5 ap- opinion denying stated his As of In Arrest pellant’s New Trial and for a Motions “run the hare and hunt Judgment, would with such This court will not sanction the hounds”. with duplicity. affirmed.

The order the court below is Opinion Concurring J.: Cercone, aspect I one be In find case to troublesome. finding opinion explicit no the lower court’s there is appellant’s that the confession Donald, brother, change testi- was credible.1 Donald refused his mony despite persistent by the court to efforts assure get ap- Donald that he than would a stiffer sentence pellant robbery if he were of the he convicted because put through the time and ex- Commonwealth pense appellant’s of two needless and trials risked the conviction.

In rebuttal the did offer the testi- mony investigator of a Mr. Pease, for the at- district torney’s gist office. The of Mr. Pease’ was totally that Donald bar misdescribed inside when he first confessed to the crime at the district at- torney’s alleged office. Mr. Pease also that Donald people incorrect about the number who were in the robbery place. bar when took him- Donald Second, only shoplifting self disorderly had one and one con- on duct offense his while the record, had two prior robbery. convictions for armed Donald well could get propor- that he determined, would therefore, tionately lighter sentence. Combined with his natural for help explain affection his brother, older this would apparently only produced The court looked to the evidence (the having “hung second first ended with a jury”) justification denying as the motion. The court did not indicate, however, how the confession would affect that second re sult. falsely willing Third, confess.

why would than the other of events recollection Donald’s vague, suggest- very proceeds of its the division period during memory ing of all the events they he committed be had vivid as not as *6 deter- well could the lower court Thus, sufficiently story credible, not was mined that Donald’s could be it light of the identification pro- confession that a tiral wherein said new acquittal. likely in the result duced would regardless of I crucial think is This determination truly after-acquired, or wheth- whether evidence attempting the hare “run with to er the confession was If Donald’s and hunt the hounds.” with like- at a new trial would and its believable introduction justice ly compel of the interests result, a different though require grant a new even would us to precisely “after-acquired satis- rule” was not Supreme “Law must fied.2 our Court has stated: As justice justice, not courts of will servant impotent any rights to or be blind to breach basic encouraged vindicate them.”3The fact that the guilt to his brother not confess and concealed his estop demonstrating operate should not to him from permitted to do where others would be innocence, fundamentally permit It unfair to a conviction so. for armed to stand the criminal conduct when misprision felony, amounted no more than ob- justice contempt struction court. being determining

There a sufficient basis for not Donald’s confession was credible and, hence, 2 See, e.g., Bulted, 422, (1971) ; Commonwealth v. 443 Pa. 431 Stiner, Superior 249, (1941). Hess v. 144 Pa. 250 See also Com Wilson, Superior (1967) ; monwealth v. 210 Pa. Ct. 424 Common Kauffman, (1959). wealth v. 190 Pa. Ct. 444 Corrie, (1931). likely produce result after a new trial, a different judgment of the court I affirm tke below. join concurring in JJ., and Hoffman opinion. County Dauphin Appellants,

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