Com. v. Bonaccurso

• Decision Date: 22 June 1993
• Citation: 425 Pa.Super. 479,625 A.2d 1197
• Parties: COMMONWEALTH of Pennyslvania, Appellant v. Samuel BONACCURSO.
• Court: Pennsylvania Superior Court

Page 1197

625 A.2d 1197

425 Pa.Super. 479

COMMONWEALTH of Pennyslvania, Appellant v. Samuel BONACCURSO.

Superior Court of Pennsylvania.

Argued January 7, 1993.

Filed April 22, 1993.

Reargument Denied June 22, 1993.

Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Com. appellant.

F. Kirk Adams, Media, for appellee.

Before CIRILLO, BECK and KELLY, JJ.

CIRILLO, Judge:

The Commonwealth appeals the grant of a new trial to Samuel Bonaccurso who was convicted of first-degree murder in 1978. The post-conviction court found that Bonaccurso was entitled to a new trial because he had been deprived of his right to testify at his original trial and because after-discovered evidence would affect the outcome of the trial. We affirm.

Bonaccurso was charged with murder and possession of an instrument of crime after Ronald Simone was shot to death in front of his (Simone's) Philadelphia car repair shop. Bonaccurso's trial counsel, Robert Simone, pursued a defense of misidentification. Bonaccurso was convicted of first degree murder. Post-trial motions were filed and denied. Bonaccurso then hired Stanford Shmukler to conduct his appeal. Shmukler felt he had a strong appeal based on the failure of the Commonwealth to disclose the existence of a surprise witness. That appeal was not successful. Shmukler then took Bonaccurso's case to federal court on a habeas corpus petition, which was also unsuccessful. Bonaccurso's third attack on his conviction was to ask for relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9543, on two grounds, a constitutional infirmity in his original trial and after-discovered evidence. The Honorable James McCrudden of the Philadelphia Court of Common Pleas found merit in both of Bonaccurso's contentions and granted him a new trial. It is from that order that the Commonwealth appeals.

During Bonaccurso's bench trial the evidence established that the victim, Ronald Simone, rented a car storage lot from Bonaccurso. Bonaccurso had chained and padlocked the lot, apparently because Simone had not paid the rent. At midnight on April 29, 1978, Simone and a friend, Joseph DiFilippo, cut the chain on the lot and towed a 1962 or 1963 Thunderbird from the lot to Simone's car repair shop. The next day, April 30, Bonaccurso was looking for Simone. First he called Simone's girlfriend and threatened to put Simone "in the hospital." Then he called Simone's garage. About five o'clock in the afternoon of April 30, a maroon Pacer pulled up in front of Simone's garage and the passenger asked for Ronald. Traffic forced the Pacer to go around the block; when it returned to the garage, Simone was standing in front of the garage. DiFilippo, who was at the repair shop Sunday afternoon, and Andre Waddell, a 13-year-old eyewitness who was walking down the street, testified that the passenger in the Pacer fired three shots. DiFilippo heard a click of a misfire and then saw the last shot which went into Simone's right temple and killed him.

The issue at the trial was identification. DiFilippo originally identified Bonaccurso as the shooter in a statement to police. At the preliminary hearing DiFilippo invoked the Fifth Amendment. At trial, DiFilippo was no longer able to identify Bonaccurso as the shooter. Andre Waddell was the surprise witness who identified Bonaccurso as the shooter. Bonaccurso's trial counsel, Robert Simone, mounted a strenuous objection to Waddell's testimony because the Commonwealth had not listed him as a witness when he (Simone) demanded any identification evidence before the trial. Bonaccurso was convicted of first-degree murder and a weapons violation and sentenced to mandatory life in prison.

A different picture of the day's events emerges from testimony during the evidentiary hearing on Bonaccurso's Post-Conviction Relief Act petition. The evidence elicited at the hearing was that Simone was also armed with a gun with which he threatened Bonaccurso and that the final shot was fired in a manner which is not inconsistent with an accidental shooting. Neil Savasano testified that on the day Ronald Simone was killed he was painting an upstairs apartment which overlooked the shooting scene. Savasano said he saw Simone and Bonaccurso arguing, and that both men were holding guns. Savasano left the window to answer the telephone; while he was away from the window he heard gun shots. When Savasano returned to the open window, he heard Simone shout at Bonaccurso to "come back" and saw Simone point his gun at Bonaccurso. Savasano saw Bonaccurso get back in his car; as he did so, Savasano testified, a last shot was fired and Simone went down. Before Savasano slipped out of the back door of the apartment, he said he saw Simone's brother hide the gun Simone had been holding. Savasano lied to the police at the time of the killing and said he had left the apartment for dinner and had seen nothing.

Bonaccurso testified to the same series of events as recounted by Savasano. He added that when he jumped back in the car, he was ducking down because he was afraid Simone was about to shoot; as he ducked down, Bonaccurso said, his gun went off accidentally. Bonaccurso told essentially the same story on the evening of the shooting to a police officer, who was a friend and not the investigating officer.

We are asked to consider whether the post-conviction court erred when it granted a new trial based on the after-discovered evidence of the testimony of Neil Savasano and others. ¹

When we examine the decision of a trial court to grant a new trial on the basis of after-discovered evidence, we ask only if the court committed an abuse of discretion or an error of law which controlled the outcome of the case. Commonwealth v. Cooney, 444 Pa. 416, 417, 282 A.2d 29, 30 (1971). The decision to grant a new trial on the basis of after-discovered evidence on a collateral appeal is premised on the standards set forth in the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. A person is eligible for relief if he has been convicted of a crime and is imprisoned, and he can show that his conviction is the result of "[t]he unavailability at the time of trial of exculpatory evidence that subsequently became available and that would have affected the outcome of the trial if it had been introduced." 42 Pa.C.S. § 9543(a)(2)(vi).

To properly sustain a collateral petition for a new trial on the basis of after-discovered evidence, the evidence must have been unavailable at the time of trial, it must be exculpatory, and it must be of such a quality that it would change the outcome of the trial. ² Evidence which the courts of Pennsylvania have found to be unavailable at the time of trial include social security records which were held in a suspension file and were not accessible to a search by social security number. Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978). In Valderrama the defendant in a first-degree murder case had offered an alibi that he was working in Puerto Rico at the time that the murder was alleged to have occurred in Pennsylvania. He was convicted after the Commonwealth argued to the jury that social security files showed no record of his work in Puerto Rico at the material time. Later it was discovered that his wages had been recorded without a social security number and that the record had been held awaiting the number. He was granted a new trial on the common law standard for after-discovered evidence introduced on direct appeal:

[T]he evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result.

Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A.2d 13, 17 (1960), cert. denied, 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961). Schuck was convicted of first-degree murder on charges stemming from an ambush killing. He sought to offer after-discovered evidence that he had been in a fist-fight earlier in the evening as corroboration of his defense that he was drunk. The court held that the evidence was merely cumulative and did not compel a different result. Other examples of evidence which was unavailable at the time of trial include a bullet lodged in the defendant's skull, previously undetected, which serves to confirm his defense that his victim shot him first and then was killed accidentally or as a suicide in remorse. Commonwealth v. Cooney, supra. A witness was after-discovered evidence in Commonwealth v. Bulted, 443 Pa. 422, 279 A.2d 158 (1971). In Bulted, the prosecutor argued to the jury repeatedly that the defense had failed to produce a "phantom" witness, one Francisco, with whom the victim was allegedly having an affair. The production of Francisco, who confirmed the husband-defendant's version of events, satisfied the after-discovered evidence rule. Id.

The question of whether the proffered after-discovered evidence is, in fact, exculpatory is best illustrated by two cases which involve the same after-discovered evidence. A laboratory technician who frequently testified for the Commonwealth was discovered to have falsified her credentials. In one case, Commonwealth v. Mount, 435 Pa. 419, 257 A.2d 578 (1969), the perjured lab technician offered the only evidence that a murderer also raped his victim. The three-judge panel sitting on the penalty phase after a guilty plea to an open charge of murder imposed the death penalty, finding that the rape was a brutal, aggravating circumstance warranting execution. Id. at 428, 257 A.2d at 582. Since the testimony of the false technician was the only evidence of rape, the state Supreme Court ordered a new trial. The same lab technician's testimony was also the focus of a new trial request in Commonwealth v. Alston, 430 Pa. 471, 243 A.2d 404 (1968). There the court found that other evidence amply established the elements of assault and...