Commonwealth v. Preston
Commonwealth v. Preston
Opinion of the Court
Opinion by
The sole issue in this appeal is whether the lower court erred in denying appellant’s petition for post-conviction relief on the ground that after-discovered evidence had been obtained requiring a new trial.
On February 22, 1972, appellant was tried and convicted on the charges of sodomy and assault by a prisoner. The Commonwealth’s chief witness, the complain
Sometime after the trial, the assistant district attorney who had been assigned to try the case against the appellant conducted his own investigation. He came to the conclusion that the appellant was innocent. On January 28, 1974, the appellant filed a petition for post-conviction relief alleging the discovery of after-discovered evidence. Without stating the content or basis for the evidence, appellant alleged that there was evidence that “would have affected the outcome of the trial had it been introduced.” No allegations were made that the evidence was not available at time of trial, but, that Mr. Norris Gelman, the assistant district attorney at time of trial, was “ready and willing to testify on the petitioner’s behalf and to introduce said exculpatory evidence.” The Commonwealth’s Answer set forth the following, in relevant part: “. . . The Commonwealth acquired, after trial in this case, certain information which might have contradicted the testimony of the complainant, Freddie Moultrie, concerning past prison complaints which he filed against various other inmates. The Commonwealth avers that, although this evidence would contradict Mr. Moultrie’s trial testimony, there is no way of ascertaining whether such information would have affected the outcome of petitioner’s case.”
In Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A. 2d 786 (1971), our Supreme Court reiterated the long-established requirements for relief on the basis of after-discovered evidence: “£. . . 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. Coleman, 438 Pa. 373, 376-77, 264 A. 2d 649, 651 (1970).”
On the basis of the Petition and Answer submitted under the Post Conviction Hearing Act, we are unable to conclude that relief should be denied without an evidentiary hearing. In the first place, we take note of the fact that Commonwealth originally joined in appellant’s request for an evidentiary hearing. Although the Commonwealth has characterized the after-discovered evidence as impeaching evidence, Commonwealth admits that it has “no way of ascertaining whether such information would have affected the outcome of petitioner’s case.” On the state of the record, we are unable to tell whether this is the only evidence obtained by attorney G-elman as a result of his post-trial investigation. We are also not able to determine whether the evidence was available to the parties prior to or during trial. Commonwealth’s Answer sheds no light on this requirement of the “after-discovered evidence” rule. We
Order denying appellant’s petition for post-conviction relief is reversed, and appellant is granted an evidentiary hearing consistent with this opinion.
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