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COMMONWEALTH v. SMITH (03/14/67)

decided: March 14, 1967.

COMMONWEALTH
v.
SMITH, APPELLANT



Appeal from order of Superior Court, Oct. T., 1966, No. 204, affirming judgment of sentence of Court of Oyer and Terminer and General Jail Delivery of Montgomery County, Sept. T., 1963, No. 111, in case of Commonwealth of Pennsylvania v. Edward J. Smith.

COUNSEL

Edward F. Kane, with him Bean, DeAngelis, Tredinnick & Giangiulio, for appellant.

Richard A. Devlin, Assistant District Attorney, with him Richard S. Lowe, District Attorney, for Commonwealth, appellee.

Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result, believing the charge of the Lower Court was erroneous. Concurring Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Jones

[ 424 Pa. Page 545]

In June 1964, Edward J. Smith, after a jury trial in the Court of Oyer and Terminer and General Jail Delivery of Montgomery County, was found guilty of robbery with offensive weapon, burglary, conspiracy to commit burglary and wantonly pointing a firearm. Smith's motions for a new trial and in arrest of judgment were dismissed and he was sentenced to serve a minimum sentence of 2 1/2 years, and a maximum sentence of 15 years. In July 1965, the Superior Court, by a per curiam order, affirmed the judgment of sentence.

On December 20, 1965, we vacated the order of the Superior Court and remanded the record to the trial court with the direction to hold a hearing to determine whether petitioner had been deprived of the assistance of counsel in the prosecution of his appeal to the Superior Court. The trial court then appointed counsel for Smith and another appeal was taken to the Superior

[ 424 Pa. Page 546]

Court, which, in a per curiam opinion, filed April 26, 1966, affirmed the judgment of sentence. We permitted allocatur.

Three issues are raised upon this appeal: (1) did the trial court err in refusing to permit Smith to testify to a conversation with a witness, one Gittlemacker, in which, allegedly, the identity of Gittlemacker's accomplice in the robbery and burglary had been revealed to Smith; (2) did the trial court err in instructing the jury that Smith had admitted entering into a conspiracy to commit the burglary; (3) was the Commonwealth's evidence sufficient to sustain Smith's conviction?

Smith contends that the trial court erred in refusing to permit him to testify as to an alleged conversation he had had with his alleged co-conspirator, Jack Gittlemacker. At Smith's trial, Gittlemacker was called to the stand. Gittlemacker, who had already been convicted by a jury for participating in the same robbery of which Smith was charged on January 5, 1963, testified, after declaring his own innocence on direct examination, that Smith did not accompany him to the victim's home on January 5, 1963.

At this trial, Smith's counsel asked the following questions and Gittlemacker made the following responses: "Q. Was Edward Smith with you when the burglary was committed? A. As far as I know, nobody was with me, and I wasn't with myself. I pleaded not guilty. Q. Did you inform me [McAllister] approximately two hours ago while sitting on this bench that Edward Smith was not with you? A. I said that, yes. Q. Did you further inform me that you would tell his Honor and tell this Jury the name of that person who was with you in the event you got some ...


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