Commonwealth v. Alston

¶1Opinion by

¶2James Alston was found guilty on March 17, 1966 by a jury of assault and battery with intent to ravish *473and corrupting the morals of a minor. A sentence of 2-1/2 to 5 years was imposed for the assault conviction and 18 months to 3 years for the morals conviction, said sentences to run concurrently. The Superior Court affirmed these convictions per curiam without opinion. See Commonwealth v. Alston, 209 Pa. Superior Ct. 731, 226 A. 2d 204 (1967). Alston then filed a March 15, 1967 petition under the Post Conviction Hearing Act which was denied and this denial also affirmed per curiam by the Superior Court.1 See Commonwealth v. Alston, 211 Pa. Superior Ct. 705, 234 A. 2d 222 (1967). A petition for allocatur was filed and subsequently granted.

¶3The contention now pressed is that perjury by a Commonwealth witness was employed to secure appellant’s conviction. The Commonwealth stipulated below that Miss Agnes Mallatrath did in fact lie concerning her qualifications as a medical technician with expertise in forensic laboratory diagnosis. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173 (1959), sets forth the guidelines governing any post-conviction claim that a conviction was procured through use of perjured testimony (supra at 269, 79 S. Ct. at 1177) : “[I]t is es*474tablished that a conviction obtained through use of false evidence, known to be swch by representatives of the State, must fall under the Fourteenth Amendment, . . . The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. . . . The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness.” (Emphasis supplied.)

¶4Napuethus requires that the perjured testimony have been employed with either the acquiescence or knowledge of the state. However, in a document attached to his post-conviction form which appellant denominated as a writ of habeas corpus, Alston admitted “that the state had no intention of purposely presenting this witness to perjuring [sic] herself to get a conviction and believes that the state presented this witness in good faith.” Given this admission, appellant’s allegation does not meet the Napueknowledge requirement.

¶5Alternatively, Alston contends that the after-discovered evidence of Miss Mallatrath’s falsification of her qualifications is sufficient to support the grant of a new trial despite the fact that the Commonwealth had no knowledge at the time of trial of her prejury. The standards here applicable are enunciated in Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A. 2d 13, 17 (1960), cert. denied, 368 U.S. 884, 82 S. Ct. 138 (1961) : “In order to justify the grant of a new trial on the basis of after-discovered evidence, the evidence . . . must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result: [citations omitted].” See also Commonwealth v. Clanton, 395 Pa. 521, 151 A. 2d 88*475(1959); Commonwealth v. Green, 358 Pa. 192, 56 A. 2d 95 (1948). To evaluate the likelihood of a different result, it is necessary to place Miss Mallatrath’s testimony in context. The Commonwealth’s case against Alston consisted primarily of testimony of the ten year old prosecutrix, which was corroborated by her mother, detailing her contact with appellant. Miss Mallatrath’s sole contribution comprised testimony that her laboratory tests of a handkerchief found on Alston’s person revealed the presence of seminal fluid.2 Faced with the prosecutrix’s testimony as well as that of her mother, we believe that exclusion of Miss Mallatrath’s laboratory findings would not “likely compel a different result” and thus conclude that a new trial on the basis of this after-discovered evidence is not required.

¶6Finally, appellant contends that his post-conviction counsel was ineffective and that he was not present at his “hearing” as required by §9 of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, §9, 19 P.S. §1180-9 (Supp. 1966). Assuming arguendo that appellant’s right to effective post-conviction counsel is identical to his right to effective trial counsel, we fail to find any reasonable alternative available to counsel which he did not employ sufficient to meet the test found in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, *476235 A. 2d 349 (1967). Although the court below did entertain oral argument, its action was not equivalent to the hearing contemplated by §9 and appellant’s presence was therefore not necessary. Simply, since this petition did not allege facts which, if proven, would have entitled Alston to relief, a hearing was not necessary and, in fact, the brief proceeding below could in no way be properly classified as a hearing.

¶7Orders affirmed.