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COMMONWEALTH v. WALKER ET AL. (07/21/55)

July 21, 1955

COMMONWEALTH
v.
WALKER ET AL., APPELLANTS.



Appeals, Nos. 122 and 123, Oct. T., 1955, from judgments of Court of Quarter Sessions of Philadelphia County, Aug. T., 1954, No. 293, in cases of Commonwealth of Pennsylvania v. John Walker; and Same v. Jesse B. Pierce. Judgments affirmed.

COUNSEL

David Kanner, for appellants.

Christopher F. Edley, Assistant District Attorney, with him William T. Gennetti, Assistant District Attorney, Victor Wright, Assistant District Attorney, and Samuel Dash, Acting District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Wright

[ 178 Pa. Super. Page 524]

OPINION BY WRIGHT, J.

John J. Walker and Jesse B. Pierce were tried in the Court of Quarter Sessions of Philadelphia County on the following bills of indictment (August Sessions 1954): No. 289 charging Pierce with carrying a concealed

[ 178 Pa. Super. Page 525]

    deadly weapon, No. 290 charging Walker with a similar offense, No. 291 charging Pierce and Walker with assault and battery and aggravated assault and battery, No. 292 charging them with conspiracy, and No. 293 charging them with robbery. The trial Judge did not submit bill No. 291 for consideration by the jury. Verdicts of guilty were returned on the other four bills. A motion for a new trial was overruled, and sentences were imposed on bill No. 293. These appeals followed.

The record discloses that, on May 28, 1954, about 10:15 a.m., two men came to the door of Jack Stamm's dwelling at 615 West Moyamensing Avenue. When Stamm opened the door, the smaller man, in Stamm's words, "put a gun in my stomach". Stamm recognized this man as Walker "from being in my tap room". Stamm was forced into the living room where the two men took $400.00 from his pocket. The taller man then forced Stamm into the bathroom, tied his hands and feet with strips torn from a pillow case, and placed adhesive tape over his mouth. In the meantime the smaller man was searching for additional money, and it was subsequently discovered that the sum of $320.00 had been taken from a closet in the rear room. Hearing the doorbell ring, the two men started to leave, whereupon Stamm broke loose. The taller man then struck Stamm on the head with a pistol. The roll of adhesive tape which had been used was subsequently found in the bathroom. An identification technician attached to the Bureau of Police discovered thereon a finger print which he compared with a print subsequently taken from Pierce. He testified that it was "the same fingerprint". When Stamm was shown a picture of Walker, he was not sure of his identity. After Pierce was apprehended, Stamm was at first not entirely certain that he was one of the

[ 178 Pa. Super. Page 526]

    robbers.*fn1 He explained his uncertainty on the ground that at the time of the robbery, "Walker had on a baseball cap and Pierce wore an old felt hat". Stamm subsequently identified both men, and at the trial testified positively as to their identity. Pierce and Walker each denied on the witness stand that he had participated in the robbery, and each attempted to establish an alibi.

Appellants first contend that the charge of the trial Judge was misleading and prejudicial. It is our duty to consider the charge as a whole, and excerpts therefrom must be read in relation to their context: Commonwealth v. Thacker, 328 Pa. 402, 194 A. 924; Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595. In determining whether a charge contains reversible error, it will be viewed in its entirety: Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445. If the charge as a whole is accurate and fair, objections to isolated excerpts therefrom do not form a proper basis for a reversal: Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389. Nor will a conviction be reversed because of errors in the charge which do ...


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