*1 guar- It has been onr “. . said that . constitutional process equal protection anties of due [call] both procedures in- criminal trials allow no persons vidious discriminations betwen and different groups persons. equal protection pro- Both and due emphasize judicial cess the central aim of our entire system—all people charged with crime far so as must, equity the law is stand on an concerned, before the justice every bar of American court.” Griffin Illinois, 351 U.S. 100 L. Ed.
Seeking apply principle this to the situation before long juries am of us, the view that as as we allow the latitude we do homicide cases, above set forth, criminal equally by defendants must treated in- forming juries they all power tbe verdicts have the to return. This means trial court should not have discretion whether or not to instruct the ele- voluntary manslaughter; ments obliged it should he every to do inso proper murder but trial, caution- ary admonition such as that set forth in footnote 2. judgment
I would vacate the of sentence and re- mand for a new trial. joins
Mr. Justice dissenting opinion. Bobebts Appellant. Commonwealth v. Mosteller, *2 J.,C. 1971. Before Bell, January Argued Pomeroy Bar- O’Brien, Roberts, Eagen, Jones, JJ. BIERC,
Marie S. for Refowich, appellant.
Nicholas M. Assistant Zanalcos, District Attorney, him II. Charles District Spaziani, Attorney, Commonwealth, appellee.
Opinion December Mr. Justice Roberts, *3 1971:
This appeal requires that we of consider the value a prosecutrix’s recantation when subsequent to trial, her testimony at trial was the sole evidence which upon the depended the support indictments against appellant for sex various crimes. We believe on record before aus new trial is necessary so a on jury pass the prosecutrix’s credi- of bility light subsequent events.
Appellant was convicted of incest, statutory rape, and corrupting the morals aof minor in a trial before a on June 1968. jury The Commonwealth’s entirely case rested upon the of Frieda Hos- appellant’s fifteen teller, year old daughter. Under oath trial, at she recounted how on the afternoon of her January father entered the bathroom bathing where she was and “started playing with my According Frieda, busts.” her father then her told to come visit him nude his bedroom, she did. the bed on her She on lay back, her father alleged- she her. She testified had intercourse ly experi- she minutes; five approximately for penetrated and no emission occurred. no pain, enced downstairs she then dressed and went Frieda stated her sister re- sleep. father When her went while fifteen Frieda later, school some minutes from turned The repeat- incident. alleged story told of thereafter. mother shortly to her ed Frieda school was called at following day, his had heard wife, who step-brother took the to the Easton They girl Frieda’s accusation. had her examined the hospital. turn at who police, specialist in obstetrics Dr. Linwood Pearson, behalf Com- as a witness on of the appeared gynecology, examination He that his testified monwealth. 1968 in the ward January 24, emergency no perineal disclosed Hospital
Easton uninjured. was intact and laceration; hymen labial examination and a rectal cotton swab test vaginal A negative. also were de- testified for the mother,
Mrs. Mosteller, that after she had informed of stated been fense. She occurred, she took Frieda into allegedly had “I at which time seen her, and examined bathroom normal.” also stated that She when everything Frieda was and in home, sitting downstairs returned disturbed or upset. way appeared no strenuously himself took stand and Appellant acts any done to him having attributed denied He being admitted home alone with *4 daughter. his by he had asserted been the entire asleep time. Frieda but conviction, appellant his submitted mo- Following in arrest of trial and a new judgment, for tions 1969. In on March 4, his argument, ap- argued were original grounds for written abandoned his pellant contending instead that June he motion of after-discovered a new trial because entitled to in the form of a sworn June 28,1968, evidence taken Mrs. by statement made Frieda and later testimony hearing. at court Mabel aunt great Yulcano, shortly Frieda had returned to live with parents 1968. after incident alleged January, occurred remained She at home until when she was May 1, 1968, adjudged a child dependent by the Juvenile Court Northampton County. Protective was ordered service for her Northampton through County Children’s and she was instructed her ma- Bureau, to live with ternal with whom she until June grandmother, stayed (thirteen days after the Frieda then verdict). voluntarily returned home. sister days Two later her telephoned their father’s and informed him attorney that Frieda wished to retract her trial testimony.
Frieda was examined attorney the district presence of defense counsel a representative Children’s Bureau on June 1968. under She stated oath that her at been had untrue, “. . . stressed, did not do and I don’t want to it, [h]e see him jail go I he didn’t something do, want to be home with parents.” my Her explanation for her earlier falsehoods “. . was, . people ecause [b] was telling me to do one thing and other were people telling me to do another thing, and I up was so mixed I didn’t know say.” According Frieda, her grandmother and her uncle pushed had testify- into ing trial. She had merely told her “my sister that father got after me,” and her sister then relayed this information to their mother. She was scared to tell the truth at trial because her “. grandmother . . them was in and if court, turned around and told the other story, he didn’t touch then I me, didn’t know what they would think.” continued by persistently every denying
aspect and detail of her previous trial despite
88 she that attorney from the district warnings
numerous which, perjury, effect the crime of admitting |3,000 up “of penalty carried her, explained not Frieda did jail.” fine up years to seven in her recantation. waiver February
A before the court hearing was held Vulcano, Mabel at which time Mrs. 3, 1969, 1968, (approxi- 14, testified that on great aunt, May had trial) prior appellant’s one month mately anything done actually asked Frieda if her father had Mrs. in the her, negative. all to and Frieda replied fact made this explained she had not Vulcano had instructed her brother known because previously hear- at this not testify her to remain did quiet. ing. trial was a new
The court en banc concluded that Superior the circumstances. warranted under not on March opinion affirmed without per Court curiam opin- a dissenting Judge filing Hoffman ion. We allocatur. granted ‘A new “. . . has often that:
This Court reiterated ground on the trial in a criminal case will awarded ques- where the evidence of after-discovered evidence could has after the trial and tion been discovered (1) conclusion been at or to the prior not have obtained is (2) reasonable diligence; the exercise of trial not be will cumulative; (3) corroborative merely witness; of a for impeaching credibility solely used a different and character such nature is of (4) ” granted.’ if a trial is likely result will verdict 264 A. 373, 438 Pa. Coleman, 376-77, (1970). 651 2d recanting testimony equally view of general
Our an appellate rule is that “The well-established settled: with the denial or granting not interfere court ground alleged the sole recanta- is the where a new been a unless there has clear tion state witnesses Pa. abuse of discretion. Commonwealth v. Green, (1957); Sholder, 128 A. 2d Commonwealth v. Superior Ct. A. 2d 632 642, 644-645,193 “Recanting testimony exceedingly unreliable, *6 duty deny it is the of it the court to a new where testimony is not satisfied that such is Common true. Superior wealth A. v. Ct. 186 Scull, proof, 2d 854 of There is no less reliable form especially perjury. when it involves an admission of Leeper Supe ex Pa. Commonwealth rel. v. 199 Russell, (1962), rior Ct. 184 93, A. 2d 149 supra.” supra v. Sholder, Commonwealth Coleman, 264 A. 2d at 651. previously presented have However, we been precisely the factual situation that confronts now gave only testimony pos- us. Frieda could sibly appellant’s have led to an conviction. iota Not corroborating of other evidence was offered. To contrary, of mother and supported appellant’s medical evidence version testimony. incident and the recantation Furthermore, by great Frieda’s retraction was corroborated aunt. Judge We are accord with the court en banc deposition dissent that ’Frieda’s of June Hoffman's constituted after discovered evidence. It was not avail- merely able until after the it trial, was not corrobora- purposes impeach- it tive, will not he used for mere unquestionably and it ment, is of to such character as probably result a different if is verdict a new trial held.
Upon careful consideration, we believe was clear abuse of discretion not to a new award trial under these thereby jury pass circumstances and allow a new to prosecutrix’s credibility. Rape, on the child as Lord century, observed the seventeenth “. . an . Hals proved; made hard to be easily accusation tho party accused, be defended and harder 635. of the Crown M. Pleas Hale, so innocent.” never have jurisdictions In of this some recognition truism, aof uncorroborated the rule that adopted a con- to support is insufficient prosecutrix (Mc- Penal e.g., N.Y. Law rape. See, viction §130.15 Evidence generally Wigmore, see 1967); Kinney 1940). ed. (3d §2061 con- generally sex crimes are
False accusations
charges
more
than untrue
frequent
ceded to be far
“A
summarized:
crimes. As one author has
other
be-
raping
an
man of
accuse
innocent
woman
delusions; or
mentally
given
cause she is
sick
ashamed
she is
consented to
having
intercourse,
because,
or because
partner;
of herself and bitter at
true
to the
explanation
a false
pregnant,
prefers
*7
man whom she
hates the
because she
one;
simply
67
Rape,
Note,
Charges
Corroborating
accuses.”
omitted).
1138
(footnote
L.
(1967)
Col.
Rev. 1137,
143
212, 231-37,
v.
Wedmore
237 Ind.
also,
State,
See
opinion
(1957)
(dissenting
N.E. 2d
657-61
649,
subject).
medical authorities on
reviews
extensively
any
today
that we are
imply
We do not mean
Commonwealth
rule
this
altering the established
way
vic
testimony of one witness—the
that uncorroborated
of rape.
sustain a conviction
be sufficient
tim—can
Pa.
Ct.
Superior
146
Ebert,
Commonwealth
See, e.g.,
130
v. Oyler,
22
(1941);
A. 2d 610
362,
However,
In the is there present case, only nothing to con- tradict Frieda’s there is from her recantation, great aunt that Frieda admitted a month prior to trial that she had fabricated the story. Additionally, persisted retraction been in- despite having formed that she was thereby subject to criminal charges and a perjury substantial term. prison This was against clear declaration interest entitled to con- siderable unlike the credibility, normal retraction aby co-conspirator already who is prison and realistically attempting has little to lose to free partner. his See, *8 v. Commonwealth e.g., Coleman, supra; Commonwealth A. v. 259 2d 160 Collins, 114, (1969). Accordingly, the order of the Superior Court is re- the motion for a trial and new granted. versed Mr. Justice Barbieri dissents.
92
Dissenting Opinion Pomeroy Mr. : Justice while what majority opinion, correctly stating I this has been the law cases of reaches sort, ac the wrong consider a result on must facts, Court “[rjecant dissent. As the cordingly reaffirms, the is it is testimony exceedingly unreliable, ing deny of court' to a new trial where duty the [trial] not that such [recanting] testimony satisfied v. Pa. 438 376- Coleman, 373, true.” Commonwealth 264 A. 2d 651 See 649, (1970). also, e.g., Common 77, Pa. 552 wealth v. A. 2d Lopinson, 284, 312, 313, v. 168 Pa. Superior (1967); Palarino, Commonwealth reason, A. 2d 665 For this Ct. appellate established rule is that an court well “[t]he the denial or not interfere with of a granting sole is the recantation ground alleged trial where the unless there been a abuse state has clear witnesses Coleman, supra. of discretion.” bar In case at the satisfied judge He recanting statement was true. reached after the recanting a careful analysis conclusion the evidence which tended to corroborate of the trial background against viewed it, of the demeanor of prose- Ms observation own stand at trial. The lead- on the witness reasons cutrix Frieda telling belief that Hosteller him the ing not in deposi- the trial and recanting truth Judge opinion forth for the are set tion Palmer’s I quote: from en wMch banc, court examination of the a close we are not record, “Upon herself at the trial. In perjured tMs persuaded this, as most recognize cases we regard no were, there witnesses. Of assault, are, sexual has therefore, always permitted the law con- necessity, based on the crimes of such uncorroborated victions victims. Where, here, the victim *9 subsequently testimony, and and was her recants, hers the which served to convict the alone, defendant, determining difficulties in where the truth lies are manifest. There certain are, however, factors light shed some which must be considered. “Thus it is to be noted that fifteen minutes after person the assault Frieda told her the first sister, come into had occurred. Within home, the a mat- ter of minutes thereafter she told her mother. next day story stepbrother she told the same to her and his police. Subsequently, wife, then to the before trial, story she affirmed this the a before Juvenile Court, protective custody result of which was awarded the Northampton County Children’s Bureau. Thereafter judge jury. she recounted the same facts to a Thus, January recanting gave from she her 23, 1988, until statement on June she never waivered the gave account which she at the trial incidents January which occurred between her and her father change story 23. It must also be noted she did not days grand- until two after she elected her to leave mother’s home and return live with her mother and family. father and the rest of her recognize story “On other hand, we was by any testimony not corroborated other case; both the examination her mother and that of the physical sup- doctor disclosed no evidence which would port story. her Opinion judge.
“'The author of this was the He clearly recalls Frieda’s demeanor on the witness stand. wept during While at times ex- course of her testimony given forthright amination, convincing intelligent manner. an She was and candid testimony There was no indication witness. inspired by spite, feeling aor malice, of hatred for her any did the father. Nor of the other wit- testify nesses reason suggest any why would falsely.
“On the does other the record before us hand, truth demonstrate Frieda told the ‘incontrovertibly’ of June In this state- recanting 28,1968. statement ment she does not if her state why, *10 first she ever in the up trial was made false, story she All state is she testified as she does that place. her uncle told her because, having grandmother did thought she if she testified story previously, the same also believe her and contrary they to the would not ‘because and them was my grandmother court, that he story if I around and told the other turned then didn’t would they didn’t touch know what me, think.’ trial disclosed while the testimony
“Similarly, mo- for to tell an untrue no motive story, apparent. Thus, her recanting testimony tive indicated she wished record discloses she first and June her sometime between June 25 story change her her return to immediately upon voluntary her where grandmother home from the home of parents’ unhappy. Obviously young girl admittedly was she whom she have her wanted parents—with felt must While her father. part convicting her live—resented expressed, this resentment no was there was her apparent only hope to her, have been it must was family into the to recant back accepted being trial. at the she had given remembered Frieda not physi- be was “It also must father and she testified she while injured by cally he she what ‘scared’, when realized she him told indication in her testi- there was no to do, proposed permanently estranged occurred what mony voluntarily returned home fact him. from father while her there was still grandmother’s from away and while she could have remained from home, demonstrates this true. while he did Thus, was a crime under the law and ‘scared’ this fifteen year girl old at the time it was there no done, evi- enormity dence it was such an in her view when as, weighed being with the alternative of able to return to parents, her home and live with her would have caused her not to choose the latter course.”
On the basis of this I do record, not see how it can be said that the lower court committed a clear abuse of discretion. majority paying
It opinion, be that the while lip prior service subject, to the law on this in effect application previously limits its to the retraction of a co-conspirator convicted and enunciates a co-felon, rule to the recantation of one who victim of and sole witness ato sex crime; the new rule would require type effect new trial the latter of case. If majority, per- is the intention of the I am not suaded that such a modification is called for or is wise. *11 dealing
We are here not with a tort claim between private parties,1 against with a but crime the state. It eminently seems to quality me sound that the of the so-called “after-discovered evidence” should scru greatest by tinized judge with the care the trial before awarding duty a trial. I think his still should be to refuse a recanting new trial if not satisfied that the statement is true. majority argue that a witness-victim has “more by admitting perjury
to lose” to trial in retraction 1 In civil cases the rule seems to be that it is an abuse of dis grant cretion for a trial court to refuse to a new trial where it by appears, “incontrovertible” trial, obtained after rendered, materially the verdict by amount, enhanced in perjury litigant reason of the of the in whose favor it was entered. Glauser, Candelore v. 291 Pa. (1928) 140 Atl. ; see also Marinelli, Blake A. 2d 550 Assum- co-conspirator, already prison. than does element this one so, only ing, arguendo, tbe it should believability retraction; going not to war- certainly carry itself sufficient credence trial. a new am aware that cases false rape rant are factors that infrequent; accusations same can responsible phenomenon operate are this false recantations. produce Chief dissent. joins Justice Held
Mr. Dollison v. and Ohio Railroad Baltimore Appellant.
Company,