McDERMOTT, Justice.
This is an appeal from the order of the Honorable Evan S. Williams, President Judge of the Court of Common Pleas of Bradford County, denying appellant relief under the Post Conviction Hearing Act ("PCHA").
Act of January 25, 1966, P.L. 1580, § 1 et seq., 19 P. S. § 1180-1 et seq.
On December 9, 1974, after a lengthy jury trial, appellant, Gerard Paul McKenna, was convicted of rape and first degree murder in connection with the brutal slaying of a sixteen year-old girl. The jury prescribed the death penalty for appellant's murder conviction. On direct appeal to this Court, we upheld both convictions, but vacated appellant's death sentence and remanded the case for resentencing on the murder conviction. See Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978) (" McKenna I"). Appellant was sentenced to a term of life imprisonment for his first degree murder conviction on April 17, 1978. These PCHA proceedings followed.
Appellant was sentenced to a term of ten to twenty years' imprisonment on his rape conviction.
Post conviction hearings were held on August 21 and October 3, 1979. The court of common pleas, per President Judge Williams, denied the requested relief and appellant appealed to this Court. The Commonwealth and appellant submitted the case on their briefs, and, on January 29, 1982, we filed an opinion and order reversing the PCHA court. We subsequently granted the Commonwealth's petition for reconsideration and, on April 2, 1982, we ordered that the parties prepare the case for oral argument during our April session. See Pa.R.A.P. 2311(b). Having carefully considered the entire record, the briefs and the able oral arguments of both sides, we now vacate our order of January 29, 1982 and affirm the order of the PCHA court.
See Pa.R.A.P. 2311.
Jurisdiction is vested in this Court pursuant to the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 722. This statute was amended subsequent to appellant's conviction, removing this Court's exclusive jurisdiction over appeals from homicide convictions. Act of September 23, 1980, P.L. 686, No. 137, § 1.
Before this Court appellant most strenuously argues his claim that trial counsel was ineffective in failing to present a material and favorable defense. The gravamen of this contention is that trial counsel had material witnesses to offer in support of appellant's alibi defense but did not call them, because he believed a new trial would be granted on appeal.
The record clearly shows that appellant's defense to the rape and murder charges was that he was not in the Bradford County area when the crimes were committed. The time of the victim's death, which the Commonwealth and appellant vigorously disputed, thus became a crucial issue at trial. Appellant contended that the victim was murdered around November 1, 1973, only one day before her body was found. The Commonwealth, on the other hand, presented extensive evidence to show that the victim died on October 28 or 29, 1973, shortly after her family had last seen her and while appellant was still in the vicinity. See generally, Opinion of Williams, P. J., at 4 (Opinion filed October 8, 1975).
At the PCHA hearing, appellant's chief trial counsel, Thomas Walrath, Esquire, did in fact testify that he believed the errors of the trial court sufficient to require a new trial and that he had, therefore, substantially abandoned the alibi defense. See generally, N.T. PCHA 8/21/79 pp. 60-80. We shall refrain from comment, for the purposes here, upon such unprofessional conduct, as there is no merit to appellant's contentions.
Mr. Walrath, appellant's private counsel, was appointed by the trial court at appellant's request to represent him in this case. See N.T. PCHA 8/21/79 p. 42. Mr. Walrath was assisted by two other court-appointed attorneys, three special investigators, a professional legal research group and a medical expert. See N.T. PCHA 8/21/79 p. 44.
Mr. Walrath admitted at the PCHA hearings that he did present the alibi defense, at least in part. See N.T. PCHA 8/21/79 p. 75; N.T. PCHA 10/3/79 pp. 18-19. This statement is strongly supported in the record. His introduction of several exhibits, his thorough and aggressive cross-examination of the Commonwealth's witnesses and his exhaustive summation demonstrate a relentless and forceful attack on the Commonwealth's evidence as to the time of death.
Defense counsel Walrath testified that, if he had fully presented the alibi defense, he would have called Dr. Irving Sopher, the defense's forensic pathologist, to fix the time of death, a consideration relevant to the alibi. Dr. Sopher was called at the PCHA hearing, not by appellant, but by the Commonwealth, and he testified as follows:
[SPECIAL PROSECUTOR]: Do you know why it was that you were not called as a witness in this case?
[DR. SOPHER]: I think one of the main . . . my main impression is after discussing with Mr. Walrath by phone as to whether I would be brought to testify or not was the fact that my testimony in view of the fact that I could not exclude a six-day postmortem interval, that
this would merely corroborate prosecution evidence in this particular case and that perhaps it may be in the best interest of the defendant that I not testify.
* * * * * *
[I]t was the final decision of Mr. Walrath that my testimony in this case I think primarily would corroborate the prosecution evidence and would, therefore, substantiate the prosecution evidence on time of death and it may be in the best interest of the client that I not testify.
N.T. 10/3/79 pp. 83, 96 (emphasis supplied). The PCHA court, which heard all the evidence, expressly credited Dr. Sopher's assertion that his testimony would have merely corroborated the Commonwealth's position. Opinion of Williams, P.J., at 6. (Opinion filed April 22, 1980). Not only would Dr. Sopher have fortified the Commonwealth at trial, but he specifically contradicted Mr. Walrath's PCHA testimony as to the reason he was not called. The soundness of Judge Williams' findings on Dr. Sopher's credibility cannot be faulted by reviewing the synthetic testimony of Mr. Walrath.
It is well-settled that the credibility of witnesses in PCHA proceedings is exclusively within the province of the hearing court. Commonwealth v. Williams, 496 Pa. 486, 437 A.2d 1144 (1981); Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977); Commonwealth v. Smith, 454 Pa. 256, 312 A.2d 396 (1973). The hearing court's evidentiary findings are entitled to great weight on appeal. Id. See also, Commonwealth v. Lee, 478 Pa. 70, 385 A.2d 1317 (1978); Commonwealth v. Hauser, 450 Pa. 388, 299 A.2d 218 (1973).
The same note of artificiality pervades Mr. Walrath's testimony concerning the contention that there were other exculpatory witnesses who might have been called, including appellant himself, State Trooper John P. George, Deputy Coroner Arthur B. King and "five or six other witnesses" whom Mr. Walrath was unable to identify. N.T. PCHA 8/21/79 p. 59; N.T. PCHA 10/3/79 pp. 20-23.
None of these allegedly exculpatory witnesses was ever produced by appellant during the PCHA proceedings. Appellant has utterly failed to sustain his burden of proving that the testimony of the witnesses would have strengthened the defense. See Commonwealth v. Robinson, 292 Pa. 633, 435 A.2d 255 (1981); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). In fact, as the PCHA court noted, what evidence there was indicated that the testimony of the allegedly favorable witnesses would have had a harmful effect or no effect at all on the defense.
Appellant himself, while not actually testifying, presented a closing argument at the second hearing in which he did not indicate in any way how his testimony would have aided the defense. N.T. PCHA 10/3/79 pp. 156-161. Moreover, whatever appellant's testimony might have been, he was not denied the opportunity to offer it at trial.
With regard to Trooper George, the record is barren of any potentially favorable evidence which could have been elicited from him. See Opinion of Williams, P. J., p. 6 (Opinion filed April 22, 1980). Furthermore, regarding Dr. King's testimony, Mr. Walrath admitted at the PCHA hearing that Dr. King had changed his opinion by the time of the trial, and agreed with the Commonwealth's expert concerning the time of the victim's death. N.T. PCHA 8/21/79 pp. 95-96.
Appellant cannot meet his burden of proof in a PCHA proceeding with the bare assertion by trial counsel that the defense might have been handled differently or that an unsubstantiated defense was not fully presented. See Commonwealth v. Pettus, 492 Pa. at 563, 424 A.2d at 1335; Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The lower court properly looked beyond the self-serving statements of appellant and trial counsel, to ascertain if there was any substance to appellant's claim. A thorough review of the evidence presented in the PCHA hearings demonstrates, as the PCHA court explicitly held, appellant's "alleged withheld defense is really no defense at all and trial counsel was not ineffective for failing to present the same." Opinion of Williams, P. J., at 6 (Opinion filed April 22, 1980). See Commonwealth v. Pettus, 492 Pa. at 563, 424 A.2d at 1335; Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980). Appellant is thus not entitled to relief on his unsupported claim that he was deprived of a material and favorable defense through the ineffectiveness of trial counsel. His contention is without merit simply because, as the record shows and the PCHA court held, the evidence trial counsel deliberately withheld was best left in the closet.
Appellant's second contention is that trial counsel was ineffective because he failed to file a motion to dismiss the indictments under Pa.R.Crim.P. 1100, which, at the time appellant was charged, required that trial commence within 270 days of the initiation of a criminal prosecution. In the instant case, the criminal complaint charging appellant with rape and murder was filed on November 20, 1973. At that time, however, appellant was in the custody of New York State authorities, to whom he had surrendered in connection with an assault, which had occurred in New York prior to the events leading to the instant prosecution. The trial court expressly held that appellant was unavailable to Pennsylvania authorities until July 9, 1974, when he consented to extradition after apparently pleading guilty to the New York charges. Due to appellant's unavailability, the period for Rule 1100 computation did not begin until July 9, 1974. See Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979); Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Pa.R.Crim.P. 1100(d). Appellant's trial, which began on November 18, 1974, was well within the 270 day period mandated by Rule 1100. Appellant thus cannot prevail on his Rule 1100 claim.
Appellant next attacks his trial counsel's failure to object to allegedly inflammatory remarks made by the prosecutor. Appellant is entitled to no relief on this claim because it was addressed by this Court on appellant's direct appeal. The very same remarks challenged here were raised in part IX of appellant's direct appeal brief. See Appellant's Direct Appeal Brief at 125-128. There can be no doubt that this Court considered and rejected the claim:
McKenna alleges some nine trial errors, any one of which, he argues, requires the grant of a new trial. Having carefully reviewed the record, we find merit in none of these claims of error and affirm the convictions of murder and rape.
McKenna I, 476 Pa. at 431, 383 A.2d at 176.
Appellant cannot seek further review through these PCHA proceedings of a claim which has been fully and finally litigated.
Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972).
See also, Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963).
We identified the issues on direct appeal more completely in a footnote:
In appellant's brief the following nine issues are raised: (1) the indictment was improper; . . . and (9) the special prosecutor was guilty of misconduct. We see no jurisprudential need to discuss any of these assertions of error in this opinion.
Additionally, we have an independent responsibility to review the evidence to determine whether the record is sufficient to support a finding of murder in the first degree. . . . This we have done and are satisfied there is sufficient evidence to support the verdict.
Commonwealth v. McKenna, 476 Pa. 428, 431-32 n. 3, 383 A.2d at 174, 176 n. 3 (1978).
Appellant's final claim is that a new trial is required due to evidence discovered after his original trial. Appellant contended at the PCHA hearing that he could produce two witnesses who would testify that a Commonwealth witness had partially recanted his trial testimony in their presence. A third witness would have stated that he had seen a blouse similar to the victim's near where the same Commonwealth witness had been staying. The PCHA court refused to allow this impeachment testimony on the grounds that the allegedly recanting Commonwealth witness had not been shown to be unavailable.
In fact, appellant assumed the Commonwealth witness was available, but chose not to call him to testify. See Appellant's Brief at 25.
The PCHA court correctly recognized that appellant's proffered testimony would not have passed muster under the three-pronged test articulated by this Court for after-discovered evidence:
[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).
See also Commonwealth v. Swanson, 432 Pa. 293, 248 A.2d 12 (1968),
cert. denied,
394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969). Appellant thus is not entitled to a new trial on the grounds of after-discovered evidence.
We have considered fully appellant's arguments and have reviewed thoroughly the record of these proceedings. We find that none of appellant's claims warrant the grant of a new trial. Accordingly, we vacate our order of January 29, 1982 and affirm the order of the PCHA court.
ROBERTS, J., files a dissenting opinion, in which O'BRIEN, C. J., joins.
FLAHERTY, J., files a dissenting opinion.