Com. v. Swanson

• Decision Date: 12 November 1968
• Citation: 432 Pa. 293,248 A.2d 12
• Parties: COMMONWEALTH of Pennsylvania v. Theodore Austin SWANSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 12

248 A.2d 12

432 Pa. 293

COMMONWEALTH of Pennsylvania v. Theodore Austin SWANSON, Appellant.

Supreme Court of Pennsylvania.

Nov. 12, 1968.

James R. DiFrancesco, DiFrancesco & DiFrancesco, Johnstown, for appellant.

Ferdinand F. Bionaz, Dist. Atty., Ebensburg, for appellee.

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

OPINION OF THE COURT

BELL, Chief Justice.

This is an appeal from a Judgment of sentence entered after the Court had denied defendant's motion for a new trial.

In December 1966, defendant was convicted by a jury of first degree murder. The jury then fixed the penalty at life imprisonment.

Ronald Webb, the only witness to the killing, testified for the Commonwealth. Defendant had been involved with Webb and Robert David Herdman, the victim, in several burglaries in or near the city of Johnstown. Webb testified that on March 10, 1966, he and the defendant were in the latter's automobile waiting for Herdman to come out of the Utopian Club in Johnstown. When Herdman left the club they followed his car and both cars finally stopped in the Coopersdale area. Defendant and Webb left defendant's automobile and got into Herdman's automobile. Webb got in the front seat on the passenger side and defendant got into the rear seat with Herdman remaining behind the wheel. Defendant accused Herdman of informing the police about certain burglaries, but Herdman denied this and accused Webb of being the informer. Webb said he became drowsy but was wakened by a shot and looked at defendant, who had in his possession a .38 automatic pistol which defendant said he purchased from his father-in-law. Webb testified he saw Herdman's head fall and that defendant then said he was sick of Herdman's lies. Defendant then told Webb to drive the car, which Webb did after pushing the victim's body over to the right side of the front seat. At defendant's direction, Webb drove out Cooper Avenue and along the Cramer Pike. They then turned and started back towards Johnstown, stopped on the berm of the highway, pulled the victim's body out of the automobile and pushed it down over a bank. The following day, defendant telephoned Webb, telling him that he had disposed of the gun. Later, while defendant and Webb were in the Allegheny County Jail, defendant told Webb that he had thrown the gun in the Windber area on the road to the Peacock Mine and that after this he had asked his mother to locate the gun, which his parents unsuccessfully attempted to do. The Commonwealth produced a State Forester who testified that he saw defendant's parents raking over leaves in that area. Defendant's father-in-law testified that he owned a .38 automatic pistol, that he saw it in his own home a month or two before defendant was arrested, and that he had not given or sold it to defendant, although the latter had offered to buy it.

On March 17 1966, defendant and Webb committed an armed robbery at the St. Michael Branch of the United States National Bank in Johnstown. They were apprehended the same day and later both pleaded guilty.

Defendant's first contention is that the trial Court erred in failing to grant a change of venue, and his second contention is that a new trial should be granted because of after-discovered evidence.

The test for each of these is whether the trial Court committed an abuse of discretion or an error of law which controlled the outcome of the case. Commonwealth v. Green, 396 Pa. 137, 142, 151 A.2d 241.

We shall consider defendant's contentions in their inverse order.

After-Discovered Evidence

In Commonwealth v. Schuck, 401 Pa. 222, page 229, 164 A.2d 13, page 17, the Court said: '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: Hagopian v. Eskandarian, 396 Pa. 401, 407, 408, 153 A.2d 897 (1959); Commonwealth v. Clanton, 395 Pa. 521, 526, 151 A.2d 88 (1959); Commonwealth v. Green, 358 Pa. 192, 199, 56 A.2d 95 (1948).'

Defendant did not take the witness stand or produce any testimony in his behalf at the trial, with the exception that his wife was a character witness. However, in this petition in which he seeks a new trial on the basis of after-discovered evidence, he relies upon the affidavits of three convicts, which are supplemented by their testimony at the hearing before the lower Court sur this petition. A convict named Craig Selby testified that on or about August first, 1966, Webb told him that he had 'taken care of Herdman,' the victim, and that he had sat behind Herdman in Herdman's car at the time he shot him. Selby did not mention this to Swanson because he didn't think it was serious and when he did tell Swanson in March of 1967 'he was somewhat amused by it at first.' This was three months after Swanson had been convicted by a jury of murder in the first degree. Hilmer, another inmate of the Federal Penitentiary, testified that In July 1966 Webb told him that he had 'fixed Herdman for stooling,' But he did not tell Swanson this because 'he took it as a joke.' In May or June of 1967, Hilmer finally told Swanson of Webb's statement that he, Webb, was the killer. Defendant's third witness was Hobbs, who was in the Allegheny County prison on May 13, 1966, while Swanson and Webb were there. Hobbs testified that while in the Allegheny County prison Webb told him, 'I am going to dump him just like I dumped Herdman. I knew he was a first class stooley. I dumped him.' In Hobbs's affidavit he said, 'I dismissed all this as idle boasting,' and in his testimony, he testified that he did not know whether Webb was lying, Or boasting or making himself a big shot. Webb was called by the Commonwealth and testified that he did not tell Hilmer that he had killed Herdman, and that he did not know Selby, and that he had not shot Herdman, and he never had told anyone that he shot Herdman.

The Opinion of the Court en banc pertinently stated: 'At the time of Swanson's trial both the jury and the trial Judge believed that Webb was a truthful witness. The statements and testimony of the three convicts do not change our opinion of Webb's testimony. The testimony of the three convicts was evasive and unconvincing. Their testimony in connection with the testimony produced at the trial would not require a different verdict. Apparently the jury had no difficulty in arriving at a guilty verdict. If the testimony of the three convicts had been added, we think the verdict would have been the same. . . . Believing as we do that Webb's testimony at Swanson's trial was essentially truthful, and considering the inherent improbability of the affidavits and testimony of the three convicts, we must deny defendant's motion for a new trial.'

We find no abuse of discretion in this analysis and decision....