Com. v. Tervalon

• Decision Date: 03 October 1975
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth TERVALON, Appellant.
• Court: Pennsylvania Supreme Court

Page 671

345 A.2d 671

463 Pa. 581

COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth TERVALON, Appellant.

Supreme Court of Pennsylvania.

Argued April 7, 1975.

Decided Oct. 3, 1975.

[463 Pa. 585] Louis M. Natali, Jr., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellee.

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

OPINION OF THE COURT

EAGEN, Justice.

On September 20, 1972, the appellant, Kenneth Tervalon, was convicted by a jury of murder in the first degree and of conspiracy to commit murder. Motions for a new trial and in arrest of judgment were denied on September 27, 1973. Thereafter on February 2, 1974, a motion for a new trial was filed on grounds of after-discovered evidence and a hearing for the purpose of taking testimony on the motion was held on March 11, 1974. On August 16, 1974, the motion for a new trial on grounds of after-discovered evidence was dismissed and a sentence of life imprisonment was imposed on the murder conviction. This direct appeal then followed.

The prosecution emanated from the fatal shooting of Phillip Wormley in Philadelphia on the evening of November 22, 1970. The shooting, carried out by a group calling itself the 'Black Liberation Army', was apparently in retaliation for Wormley's retention of proceeds obtained by the group during an earlier robbery of a Gino's restaurant. ¹

At trial, the Commonwealth's case against Tervalon rested primarily on the testimony of Kevin Hall, Willie Williams and Willene Eason. Both Hall and Williams testified that Tervalon was a member of the Black Liberation Army. Williams further testified that, on November 20, 1970, both he and Tervalon were present at and participated in a vote of the Black Liberation Army to execute Wormley. Miss Eason, Wormley's girl friend, testified that on the night of the shooting, Tervalon, with whom she had had previous contact, came to the door of the apartment she shared with Wormley and asked Wormley to go outside. Shortly after the two departed, she heard four gunshots coming from the direction of the driveway behind the apartment building. The police later found Wormley's lifeless body in this driveway.

Tervalon initially contends the trial court erred in refusing to grant him a new trial on the basis of after-discovered evidence. The law is well-settled that '(i)n 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: (cites omitted)'. 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). See also Commonwealth v. Cooney, 444 Pa. 416, 417--418, 282 A.2d 29 (1971); Commonwealth v. Bulted, 443 Pa. 422, 428--429, 279 A.2d 158 (1971); Commonwealth v. Mount, 435 Pa. 419, 423, 257 A.2d 578 (1969). Moreover, unless there has been a clear abuse of discretion, the refusal of the trial court to grant a new trial on the basis of after-discovered evidence will not be disturbed. See Commonwealth v. Mosteller, 446 Pa. 83, 89, 284 A.2d 786 (1971); Commonwealth v. Swanson, 432 Pa. 293, 298, 248 A.2d 12 (1968).

A review of the record reveals that Richard Stewart, an indicted co-defendant, was at large in Canada during the time of Tervalon's trial. Stewart was apprehended on October 7, 1972, and returned for trial. Thereafter, both at his own trial and at the trial of Richard Alston, another co-defendant, Stewart testified that he (Stewart) had planned and carried out the Wormley killing and that Tervalon did not participate in any way. Subsequently, at a hearing on the motion for a new trial, Stewart repeated his story, directly contradicting the testimony of the Commonwealth witnesses. He denied Tervalon was ever a member of the Black Liberation Army. He admitted that a vote to kill Wormley had been held, but maintained that Tervalon was not present. And he indicated that two revolutionaries, Hasson and Abdul, not Tervalon, had been detailed to Wormley's apartment to bring Wormley down to the street.

The trial court, while recognizing that Stewart's testimony was after-discovered and could not have been discovered in time for Tervalon's trial by reasonable diligence, nevertheless denied Tervalon the requested relief. It concluded, after a careful review of Stewart's testimony and the testimony given by the Commonwealth witnesses at trial, that there was no likelihood the presentation of Stewart's testimony would compel a different result upon retrial. We agree.

Although Stewart did admit his participation in the Wormley killing, this admission was not new evidence. Williams, in his trial testimony, stated that Stewart had participated in the vote to kill Wormley and a dying declaration of Ronald Murray introduced into evidence named Stewart as being among those who shot him and Wormley. Therefore, this portion of Stewart's testimony was merely corroborative of and cumulative to evidence already adduced at trial and was not, in itself, likely to compel a different result. Cf. Commonwealth v. Schuck, supra; Commonwealth v. Green, 358 Pa. 192, 56 A.2d 95 (1948).

In addition, Stewart stated that Tervalon was not involved in the Wormley killing. However, by the time Stewart testified on Tervalon's behalf, he had already been tried for participation in the Wormley killing and had been found guilty of murder in the first degree. Therefore, his testimony was not unlike that of 'a co-conspirator who is already in prison and realistically has little to lose by attempting to free his partner', Commonwealth v. Mosteller, supra at 91, 284 A.2d at 789, which testimony has traditionally been examined and considered with great caution. Cf. Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649 (1970). ² Moreover, it is striking, that while Stewart exonerated Tervalon and fingered Hasson, Abdul and Che as having participated in the Wormley killing, he indicated he would not cooperate in their apprehension or testify against them. In addition, Stewart's story could not be corroborated by the law enforcement authorities. Furthermore, Stewart, upon questioning by the trial court, expressed his utter contempt for the law and the judicial system under which it operates. When Stewart's testimony is contrasted with the trial testimony of the three Commonwealth witnesses, including that of eyewitness identification, we can find no abuse of discretion in the trial court's determination that its presentation was not likely to compel a different result upon retrial. ³

Tervalon next contends the trial court improperly permitted the Commonwealth to introduce in rebuttal, evidence of a statement he made to the police on the night of his arrest. At trial, ⁴ Tervalon's wife, Barbara, testified that she and Tervalon were at home all evening on November 22, 1970, except for a short period when he went out to buy her a special kind of cupcake. In rebuttal, to impeach this alibi testimony, the Commonwealth introduced Tervalon's statement in which he admitted being with a friend named Roger for part of the evening in question; in addition to going to the store in search of his wife's desired cupcake. Tervalon claims this rebuttal was improper and his statement could properly have been used to cross-examine only His testimony or to rebut evidence presented by him personally. Therefore, he argues, the evidentiary use of his statement to impeach his wife's testimony was hearsay and should not have been permitted. However, Tervalon is able to point to no authority which would support this proposed limitation upon the use of a defendant's extrajudicial statement, ⁵ and we find this claim devoid of merit.

As a general rule voluntary, extrajudicial statements made by a defendant may be used against that defendant although they contain no admission of guilt. Commonwealth v. Wentzel, 360 Pa. 137, 150, 61 A.2d 309 (1948); Commonwealth v. Tenbroeck, 265 Pa. 251, 254, 108 A. 635 (1919). See generally, McCormick, Law of Evidence, § 144 (2d ed. E. Cleary 1972). These extrajudicial statements, which differ from confessions in that they do not acknowledge all essential elements of a crime, are generally considered to qualify for introduction into evidence under the admission exception to the hearsay rule. ⁶ McCormick, Supra, § 262; 4 Wigmore, Evidence § 1048 (Chadbourn rev. 1972).

While Tervalon's prior statement might properly have been received as part of the Commonwealth's case in chief, this fact does not necessarily exclude its use in rebuttal. Evidence is admissible in rebuttal to contradict that offered by a defendant or his witnesses, even though by doing so the Commonwealth supplies previous omissions from its case in chief. Commonwealth v. Hickman, 453 Pa. 427, 432, 309 A.2d 564 (1973); Commonwealth v. Libonati, 346 Pa. 504, 511, 31 A.2d 95 (1943); 2 Henry, Pennsylvania Evidence, § 730 (1953). We have previously stated that the order of presentation of evidence is a matter of sound discretion for the trial court. Commonwealth v. Hickman, supra; Commonwealth v. Koch,446 Pa. 469, 478, 288 A.2d 791 (1972). Instantly, the introduction into evidence of Tervalon's statement to the police during the Commonwealth's case in chief would have served little purpose as, standing alone, it contained little which was incriminatory. However, it served a vital evidentiary purpose when used to impeach the testimony of Tervalon's wife. Under these circumstances, we find no error in the trial court allowing the Commonwealth to use Tervalon's prior statement for the purpose noted. ⁷

Tervalon further contends the trial court erred in not instructing the...