Appeal, No. 146, April T., 1955, from sentence of Court of Oyer and Terminer of Allegheny County, Feb. Sessions, 1955, No. 20, in case of Commonwealth of Pennsylvania v. Peter Savor. Judgment affirmed.
Norman Paul Wolken, with him Wolken & Landy, for appellant.
Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 471]
Peter Savor, James Clegg and Joseph Reese were indicted in the Court of Oyer and Terminer of Allegheny County on a charge of armed robbery. Reese pleaded guilty, and was a witness for the prosecution at the trial of Savor and Clegg. During the morning session, Reese was questioned by the district attorney as follows: "Q. How long have you known Mr. Clegg and Mr. Savor? A. Well, I met Mr. Savor in 1943 in the Western State Penitentiary ... Q. You met Mr. Savor in 1943 in the Western State Penitentiary?" Savor's attorney then addressed the court: "Your Honor, I object to the answers being given by the witness, as being prejudicial to the defendant". This objection was sustained: "Yes, we will sustain that objection, and strike so much of the statement from the record as indicates that the defendant, Savor, had been in the Western Penitentiary". The trial judge then said to the jurors: "We tell the Jury to disregard that because that might be construed by you as evidence of a conviction of some former crime, and that should not be any evidence to tell against the defendant Savor in the trial of this case. I ask you to take that from your mind". After the noon recess, Savor's attorney made a motion to withdraw a juror, which motion was denied. Both Savor and Clegg were convicted. No motion was made for a new trial. Sentence was imposed, and this appeal by Savor followed.
Appellant's sole contention is that it was reversible error for the trial judge to refuse to withdraw a juror. In limine, it should be noted that the court below was not afforded an opportunity to pass upon this question. For this reason the appeal should be dismissed. See Commonwealth v. Aikens, 179 Pa. Superior Ct. 501, 118 A.2d 205; Commonwealth v. Pittman,
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Pa. Superior Ct. 645, 118 A.2d 214. However, since appellant's attorney at the trial was immediately thereafter called into army service, the Commonwealth "does not desire to press this technical point". Under the circumstances, we have concluded to dispose of the appeal on the merits.
It is of course true, as appellant contends, that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime: Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193. However, this proposition does not necessarily operate to make inadmissible a statement as to where a witness first met the defendant. For instance, in Commonwealth v. Robinson, 163 Pa. Superior Ct. 16, 60 A.2d 824, it was said that the Commonwealth "had a right to show the first identification of the defendant by the prosecuting witness, whether she saw him on the street and had him arrested, or whether she saw him in a prison cell while being held for some other offense (italics supplied)". See also Commonwealth v. Biancone, 175 Pa. Superior Ct. 6, 102 A.2d 199, in which case the victim of a robbery was permitted to testify that he made his first identification of the defendants in a prison. While appellant's identity was not at issue in the case at bar, the theory of his defense was that he was unaware of any unlawful design.*fn1 Therefore it would seem that the prior intimacy of the participants should constitute relevant evidence, notwithstanding the incidental and unsolicited disclosure that
[ 180 Pa. Super. Page 473]
their acquaintance had its inception in the penitentiary. In Commonwealth v. Biddle, 200 Pa. 647, 50 A. 264, three defendants were jointly indicted for a murder committed in the act of burglary. One was permitted to testify as to the criminal concert of the three long anterior to the particular crime under investigation, even though other crimes were mentioned by the witness in a general way, but without attempt ...