Com. v. Swanson

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before BELL; BELL; JONES; MUSMANNO
• Citation: 432 Pa. 293,248 A.2d 12
• Decision Date: 12 November 1968
• Parties: COMMONWEALTH of Pennsylvania v. Theodore Austin SWANSON, Appellant.

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248 A.2d 12 432 Pa. 293 COMMONWEALTH of Pennsylvania
v.
Theodore Austin SWANSON, Appellant. Supreme Court of Pennsylvania. Nov. 12, 1968.

[432 Pa. 294]

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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.

[432 Pa. 295] 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

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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 [432 Pa. 296] 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 [432 Pa. 297] 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,...