Commonwealth v. Mervin
398 A.2d 687
Pa. Super. Ct.
1979
Check Treatment

*1 498 an exten- us, the filed its for petition

bеfore Commonwealth (a sion of work day Monday) time on following the first Jones, In one day. hundred 473 eightieth 211, Pa. 373 our Court ruled (1977), Supreme A.2d 1338 Act2 1908 of the Construction Statutory required the § compu- of a from the holiday omission Saturday, Sunday, when the final for trial falls day tation of a of time period on in the petition such a the Commonwealth’s day. Sinсe case before filed “prior expiration us was trial,” for the Commonwealth’s period commencement petition was timely filed. the court

Reversed аnd remanded for consideration petition below of the merits of the Commonwealth’s If the be found to be petition extension of time for trial. meritorious, to trial within 120 proceed then the case shall merit, then to be without If the is found days. petition case shall be dismissed. HOFFMAN, J., former did

. or decision of this case. in ‍‌​‌‌​‌‌​‌​‌​‌​‌​​‌​​​​​​​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‍the consideration рarticipate 398 A.2d 687 Pennsylvania COMMONWEALTH MERVIN, Appellant. A. John Superior Pennsylvania. Court of 20, March 1978.

Submitted 23, 1979. Decided Feb. 10, (or 1977)

days try from the date of the mistrial until October to case; this issue is not before us аt this time. therefore 707, 230, 2. Act of as amended November P.L. No. 290, 3, 6, 1972, 1501 et Act of §§ December P.L. No. Pa.C.S. *3 Berkowitz, appellant. Philadelphia, Malcolm W. West Knauer, Attorney, District Assistant H. Timothy Commonwealth, appellee. ‍‌​‌‌​‌‌​‌​‌​‌​‌​​‌​​​​​​​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‍Chester, for HOFFMAN, and CER- Before VOORT, HESTER, and CONE, PRICE, der SPAETH VAN JJ. VOORT, Judge:

VAN der sought from an Order relief denying is taken Appeal 1966, Act of Post Conviction Act. Hеaring pursuant Relevant facts 1580, seq. 1180-1 et 25, P.S. P.L. January as an employed agent are that undercover appellant, was with suborna- charged Department, West Chester Police investigations and as a result of conspiracy tion of perjury Mervin for a 1970 trial of surrounding of circumstances in an ac- The 1970 trial resulted various assаult charges. 1972, December, trial for subornation but quittal, We af- with convictions. ended perjury and conspiracy appeal. sentence in direct appellant’s judgments firmed 552, 326 A.2d 602 Mervin, 230 Pa.Super. Thereafter, sought P.C. appellant (1974), allocatur refused. and defense Commonwealth relief, argument H.A. 11, 1976. counsel was on June held to whiсh counsel filed no amended In his se pro petition, us, below, and now before pleading, argument became available that evidence after his 1972 argues record, its outcome. From the which would have affected these. The crux of the the facts of this are allegation in evening case was that on an Octobеr Commonwealth’s officer police in room of West Chester included, whose Robinson, group, appellant gathered there in involved Mer- subornation of witnesses purpose was the this, at subornation appellant’s vin’s 1970 Relative to trial. she a nurse testified that entered conspiracy of October to find night Robinson’s room on the and whom she identify, men, there four whom she could *4 An officer visiting hours. Boyd told to leave it was after as testified visited in Robinson’s room at least that he had wife. no onе there but Robinson’s twice and there had been himself invoked immunity Robinson his Fifth Amendment found guilty. this trial. Mervin was from at testifying Thereafter, to trial brought Robinson the Commonwealth bargain some kind of offering plea for the same charges, which testify, would take the stand to he so that immunity was on the of October testimony night he did. His that nurse’s 1970, the of the night gathering, termination of the of police he officers the department, was visited certain named, including Boyd, “others” left whom he unnamed. trial, At he Boyd Robinson’s that had several times officer, visited room with another hospital un- named. There is an conflict in the of testimony obvious testimony and it is the Robinson from his trial which Boyd, to Mervin when he was is the evidence that was unavailable subject tried and which is the of his P.C.H.A. petition. that this from with appellant We agree refused to at Robinson, testify Mervin’s is the type who of trial and subsequently evidence unavailable the time Act, id, the available, 1180- comprehended which is The Act that SicXlS).1 requires exculpatory it must also be whether or not Robinson evidence. Thus ‍‌​‌‌​‌‌​‌​‌​‌​‌​​‌​​​​​​​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‍question there is a at his did not appear trial said that Mervin in his room on 12, 1970, the or on From night any night. of October other case, the record of the instant the P.C.H.A. specifically that he named several names we are informed proceeding, and then the “others” to who was there. say used word named nor identified оne of the Mervin was neither as Robinson did “others.” that not name Appellant argues could not have been when Mervin; present therefore Mervin suborned, necеssarily that Mer inferring witnesses were The Commonwealth argues vin was not one of the “others.” stretching is the facts and that this inference essentially From arguments breaking point. the P.C.H.A. past reiterate was only argument proceeding again we —which other record, matter of we left are —and in doubt as to the nature of exculpаtory the unavailable It would be under testimony. clearly exculpatory appel if lant’s Robinson stated that interpretation, affirmatively 1970; Mervin was not in his room in but clеarly October source, any 1. Since this evidence was not available from other occupants having divergent other witnesses stories as to the alleged criminality, agree night room on the we cannot merely with the lower court evidence was the unavailable grounds cumulative and as such not for consideration P.C.H.A. *5 viеw.2 the exculpatory by not Commonwealth’s We will will which hearing at evidentiary remand for an in the record reviewed and included or specifically be taken or tо whether as existing ambiguity to the clarify was not that Mervin Robinson, in his own subornation apparently when the in Robinson’s room present there- or lack occurred, exсulpatoriness, the to the end that be determined. may of, in the unavailable evidence court in its opinion the lower appellant Both The coram nobis. оf error writ deal with the repeatedly writ, evidence una to this that allowance principles giving the compels and that it available trial becomes vailаble at which Act, 1180-3(c)(13), result, are similar § opposite sub evidence exculpatory relief when allows post-conviction affected the “that would have becomes available sequently the if While of it had been introduced.” outcome the Post Convic supplanted by been exists, it has writ still in the rarest situation. Common tion Act Hеaring except (1971) 285 A.2d 465 Sheehan, wealth 446 Pa. 130, 378 A.2d 488 Runkle, 250 Pa.Super. instances of the (1977). extraordinary case is not one This appel writ coram nobis because the use of the warranting seеks relief solely P.C.H.A. and petition lant has filed his nobis. for writ coram petition not by under the Act and merit final without arguments appellant’s We find unconstitutionally the state has аrgues and affirm. He Act, viz., id., 1180- testimony, perjured Boyd’s. used now that the incon assertion 3(c)(9). appellant’s It is only at to it testimony Mervin’s trial compared in Boyd’s sistency Whatever perjury Boyd. trial constitutes Robinson’s he never placed in Boyd’s there is inconsistency so far as the record before us room Mervin in Robinson’s argues that the statе unconsti- Further, discloses. proceeding, the lower P.C.H.A. June 2. At the close get transcripts of the Robinson trial for court states that it will However, study very to resolve. issue whiсh we are unable opinion subsequently provides and no indication no answer filed ambiguity. transcripts that said resolve the his trial time of from Mervin at the suppressed tutiоnally been having granted bargain the evidence *6 allege In not in his Mervin did petition, his trial.3 immunity P.C.H.A., and it ‍‌​‌‌​‌‌​‌​‌​‌​‌​​‌​​​​​​​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‍must now be this is a reason relief considered waived. court is with directions

The rеcord remanded not his own in Robinson below determine whether in that Mervin was not affirmatively and/or the when subornation room at time any If Robinson gave in October 1970. plаce took conspiracy grant shall a court below such affirmative order such shall not give new trial. If he did stand affirmed. remanded in part. in and part

Affirmed in the SPAETH, J., concurs result.

CERCONE, files statemеnt. dissenting Judge, President HOFFMAN, J., and President did former of this or decision case. participate in the consideration CERCONE, Judge, dissenting: lower the order of the court. I affirm dissent would 398 A.2d Pеnnsylvania COMMONWEALTH HUNT, Appellant. Eugene of Pennsylvania. Superior Court June Submitted 1978. Feb.

Decided 1979. apparent inconsistency record not disclose the 3. The before us does immunity, ‍‌​‌‌​‌‌​‌​‌​‌​‌​​‌​​​​​​​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‍as the lower granted court as to how Robinson who was it, call on to trial. went