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COMMONWEALTH v. SLIVA (03/17/64)

March 17, 1964

COMMONWEALTH
v.
SLIVA, APPELLANT.



Appeal No. 354, Oct. T., 1963, from judgment of Court of Oyer and Terminer of Bucks County, March T., 1959, No. 106, in case of Commonwealth of Pennsylvania v. Henry Sliva. Judgment affirmed.

COUNSEL

Henry Sliva, appellant, in propria persona.

Ward F. Clark, Assistant District Attorney, and Paul R. Beckert, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Rhodes

[ 202 Pa. Super. Page 456]

OPINION BY RHODES, P.J.

This is an appeal by Henry Sliva from a judgment of sentence of the Court of Oyer and Terminer of Bucks County on an indictment containing four counts of robbery and armed robbery. At the time of trial defendant was incarcerated in the State Correctional Institution at Philadelphia undergoing a sentence of thirty years to sixty years imposed in Montgomery County. Defendant was tried before a jury, and, after refusing appointment of counsel, acted as his own counsel. At the conclusion of the Commonwealth's case, Judge EDWIN H. SATTERTHWAITE sustained a demurrer to one of the counts. The jury returned a verdict of guilty on the remaining counts, and defendant was sentenced to a term of not less than two and a half years nor more than five years to run concurrently with his present sentence.

The home of Mr. and Mrs. Bernie Ray Butler was burglarized about 3:30 a.m. on April 15, 1958. The burglar entered on the ground floor by prying open a screen and raising a window. He made his way to the second floor and awakened Mrs. Butler. Her first observation was a man standing at the foot of her bed

[ 202 Pa. Super. Page 457]

    with a flashlight in his hand. The intruder stated he was a burglar and told Mrs. Butler to keep quiet. She turned on a nearby light and was told by the intruder to turn it off. She then awakened her husband. Before turning off the light, however, Mrs. Butler observed the intruder. She gave a detailed description of the man and his clothing, and said that he had a "dirty pink" handkerchief tied over the lower part of his face. She described his voice as being raspy. She saw that the hand holding a pistol had a tremor resembling a "slight palsy condition." Mrs. Butler's description of the intruder was corroborated by the testimony of Mr. Butler in many respects, including the trembling hand and the voice. The Butlers also observed the intruder's silhouette in the moonlight and his manner of walking about the room. They saw him remove the contents of a purse or wallet. The intruder promised not to disturb their young son who was sleeping in an adjoining bedroom. The intruder took Mr. Butler's watch and $200 in currency. He also took another watch and about $65 from Mrs. Butler's handbag.

On November 14, 1958, Mrs. Butler identified defendant in a police line-up in Ardmore, where seven men first appeared without masks, and then, in a different order, they appeared with handkerchief masks. Subsequently, on November 19, 1958, Mr. Butler confronted defendant at the same police station, conversed with him, and also positively identified him as the intruder. Defendant did not take the stand, but, in acting as his own counsel, gave the jury full opportunity to observe his physical features and hear his voice.

On this appeal defendant contends (1) that he was denied his right to a speedy trial; (2) that the trial judge acted as an advocate, thereby denying the accused the equal protection of the law: (3) that the ...


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