Commonwealth v. Ball

Summary

The Pennsylvania Superior Court affirmed Robert J. Ball’s judgment of sentence for burglary, terroristic threats, and intimidation of witnesses or victims. The court held that the proffered after-discovered evidence was offered solely for impeachment and therefore could not support a new trial. It also rejected claims of ineffective assistance based on counsel’s failure to call or investigate witnesses and declined to consider an unpreserved witness allegation raised only in the appellate brief.

Holdings

1. A new trial was not warranted because the proposed evidence concerning the prior condition of the doors would be used solely to impeach the Commonwealth's witnesses, failing the after-discovered-evidence requirement that the evidence not be used solely for impeachment.
2. Trial counsel was not ineffective because Smolensky's proposed testimony lacked arguable merit: the prior condition of the outside door was irrelevant to the burglary charge and, even if relevant, was inadmissible without evidence that the door's condition had not changed before the burglary.
3. The court would not consider the alleged facts concerning Tom Gill because the issue was not preserved in the trial court and the appellate record contained no reference to the witness or proposed testimony.

Questions Presented

1. Whether Ball was entitled to a new trial based on alleged after-discovered evidence concerning the prior condition of the residence's doors.
2. Whether trial counsel was ineffective for failing to discover or subpoena Albert Smolensky as a witness.
3. Whether the appellate court could consider the alleged testimony of Tom Gill when that witness and proposed testimony were mentioned only in Ball's appellate brief and were not presented to the trial court.

Disposition

affirmed