Com. v. Mount

• Decision Date: 09 October 1969
• Citation: 257 A.2d 578,435 Pa. 419
• Parties: COMMONWEALTH of Pennsylvania v. George A. MOUNT, Appellant.
• Court: Pennsylvania Supreme Court

Page 578

257 A.2d 578

435 Pa. 419

COMMONWEALTH of Pennsylvania v. George A. MOUNT, Appellant.

Supreme Court of Pennsylvania.

Oct. 9, 1969.

Stephen M. Feldman, Robert E. Lenton, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., James D. Crawford, Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J. , and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION

JONES, Justice.

Appellant was indicted for the murder of one Frances Lieberman on August 29, 1963. ¹ After he pleaded guilty to murder generally, a three-judge panel was convened under local Philadelphia practice to hear testimony on the degree of guilt. Upon hearing all the evidence, the panel determined that appellant had raped his victim in addition to killing her and fixed the penalty at death in the electric chair. This Court upheld the conviction against appellant's charge that there was insufficient evidence to prove that a rape had been committed. Commonwealth v. Mount, 416 Pa. 343, 205 A.2d 924, cert. denied, 381 U.S. 954, 85 S.Ct. 1815, 14 L.Ed.2d 727 (1965). Subsequently, we also denied appellant's petition for habeas corpus. Commonwealth ex rel. Mount v. Rundle, 425 Pa. 312, 228 A.2d 640, cert. denied, 389 U.S. 875, 88 S.Ct. 171, 19 L.Ed.2d 161 (1967). Appellant then filed the present petition under the Post Conviction Hearing Act.

Appellant's principal contention concerns the testimony of one Agnes Mallatratt. Miss Mallatratt was employed by the Philadelphia Police Department as a laboratory technician specializing in blood and other body fluid stains. After she had testified in many cases, it was discovered in 1965 that she had lied about her professional qualifications in that, in reality, she had never fulfilled the educational requirements for a laboratory technician. Miss Mallatratt testified at appellant's sentencing hearing that she found seminal stains and blood stains matching the deceased's blood type on a pair of underpants found among the appellant's belongings at the time of his apprehension. Appellant alleged in his PCHA petition that the subsequent revelation that Miss Mallatratt had perjured herself requires that her testimony by disregarded. Appellant further contends that without Miss Mallatratt's testimony there is insufficient evidence upon which to find that a rape had been committed and that, therefore, he is entitled to be resentenced. ² The court below (per Weinrott, J.) denied the petition without a hearing. ³

This is the second case which has come before this Court involving testimony by Miss Mallatratt. In Commonwealth v. Alston, 430 Pa. 471, 243 A.2d 404 (1968), we held that the rules governing after-discovered evidence would apply to cases tried before it was revealed that Miss Mallatratt had perjured herself. In Commonwealth v. Schuck, 401 Pa. 222, 164 A.2d 13 (1960), cert. denied 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961), we outlined the circumstances which would justify the grant of a new trial because of after-discovered evidence as follows: 'In order to justify the grant of a new trial on the basis of after-discovered evidence, the 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: (citing authorities).' (Emphasis added) (401 Pa. at 229, 164 A.2d at 17)

The Commonwealth's initial argument is that since Miss Mallatratt did not testify concerning her qualifications at appellant's sentencing hearing, ⁴ the only afterdiscovered evidence was the fact that Miss Mallatratt had perjured herself In other trials. This information would go solely to the issue of her credibility as a witness at appellant's hearing, and, under the Schuck test, this alone would not entitle appellant to relief. The Commonwealth's argument, however, ignores the most crucial factor. What is important is not whether Miss Mallatratt testified as to her credentials at appellant's hearing but whether three-judge panel looked upon her as an expert witness. From the colloquy at the hearing, there can be no doubt that the three-judge panel considered Miss Mallatratt an expert based on the previous occasions on which she had testified. ⁵ Regardless of what she might have said concerning her educational background at appellant's hearing, the panel assumed that she had the requisite qualifications of a laboratory technician. Therefore, we must reject the Commonwealth's argument. The crucial question then becomes whether Miss Mallatratt's testimony was merely cumulative and, if not, whether discounting her testimony would likely compel a different sentence.

The Commonwealth's evidence of rape consisted of the following testimony: first, a police officer testified that when the body of the deceased, who was nine months pregnant at the time, was discovered, she was found lying on her back on the floor with her nightgown pulled above her vagina. Blood stains were found underneath the victim's knees. Second, the medical examiner testified that he found acid photsphatase in the vagina of the deceased. This evidence indicates that the deceased had had intercourse some time within the preceding seven to ten days. A vaginal smear was also prepared to determine whether sperm was present, but the test was technically defective, so that the doctor was unable to testify whether sperm was present in the deceased's vagina. Third, the appellant confessed that, after stabbing the victim, he decided that he would rape her. He removed his clothes and lifted up the deceased's nightgown, but then decided that he could not continue and got dressed and left the apartment. The final evidence was Miss Mallatratt's testimony. A pair of underpants was discovered in the abandoned automobile in which the appellant was found sleeping several days after the crime. Miss Mallatratt testified that on the inside of the underpants she found both seminal stains and blood stains of type 'Q', which was the deceased's blood type. There is little doubt that this latter testimony was crucial to the panel's finding that appellant had raped the deceased. In his opinion, Judge Weinrott said, 'Defendant also committed a rape upon this woman. His undershorts revealed the presence of seminal fluid and blood which matched that of the deceased * * *.'

Upon reviewing the record, we have reached the conclusion that Miss Mallatratt's testimony was not merely cumulative and that, discounting her testimony, there was insufficient evidence to prove a rape. The condition in which the body was found is consistent with the appellant's confession that he decided to rape the victim but then changed his mind. We cannot conclude from the fact that appellant confessed that he harbored plans to rape the deceased that this was the least that he did and that he probably did much more. There is no evidence to contradict the appellant's version of what transpired. The medical examiner's examination was inconclusive since we cannot assume that the deceased, although she was nine months pregnant, did not have intercourse with her husband in the period of seven to ten days preceding the murder. The most damaging evidence was Miss Mallatratt's testimony which would indicate that not only had the appellant undressed but that, in all probability, he had ejaculated as well. In short, without Miss Mallatratt's testimony, there is insufficient evidence to prove that the appellant did rape the deceased. ⁶

In the instant record posture Miss Mallatratt's qualifications As a laboratory technician were accepted by both court and counsel without question. The fact that Miss Mallatratt was not actually accredited as a laboratory technician was not discovered until after appellant's trial and...