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COMMONWEALTH v. HOLLOWAY (06/13/68)

decided: June 13, 1968.

COMMONWEALTH
v.
HOLLOWAY, APPELLANT



Appeals from judgment of Court of Quarter Sessions of Philadelphia County, Aug. T., 1965, No. 1662, in case of Commonwealth of Pennsylvania v. James Holloway.

COUNSEL

Charles W. Bowser, with him Charles Butterworth, for appellant.

Michael J. Rotko, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Watkins, J.

Author: Watkins

[ 212 Pa. Super. Page 251]

This is an appeal from the judgment of sentence in the Court of Quarter Sessions of Philadelphia County by James Holloway, the defendant-appellant, after conviction by a jury on charges of aggravated robbery and carrying a concealed deadly weapon. He was sentenced to five to ten years imprisonment. A motion for a new trial was denied on January 24, 1966 and no appeal taken therefrom. On March 21, 1966, the appellant filed a petition under the Post Conviction Hearing Act asking for a new trial nunc pro tunc. There was a hearing before Judge Stanley Greenberg on the petition and the court below permitted an appeal nunc pro tunc to this Court.

[ 212 Pa. Super. Page 252]

In the trial of the case counsel for the appellant stipulated that the appellant's prior record could be introduced into evidence. The appellant was represented by the Public Defenders Association and counsel was inexperienced. The record was read in the presence of the jury and consisted of a prior conviction of burglary. The appellant had taken the stand on his own behalf. At the time his prior record was permitted to be introduced into evidence, no explanation, statement of purpose or instruction as to the limited purpose of this stipulated testimony was given by court or counsel.

In the charge to the jury the court stated: "This testimony was not offered for the purpose of proving the facts of the case. You will disregard that entirely as far as proving this case beyond a reasonable doubt. It was only introduced for the purpose of showing guilty knowledge and intent. This is what might be called res inter alios acta -- similar but disconnected events." This standing alone was clearly prejudicial error.

At the conclusion of the court's charge counsel for the appellant raised no question but the district attorney requested a side bar conference, which was granted. The district attorney then advised the court that the prior offense was not similar and that the record was introduced only to attack credibility.

The Judge, after the side bar conference, gave the following instructions to the jury: "The district attorney tells you the purpose for the introduction of the previous conviction of this defendant on the charge of robbery was for you to weigh his credibility, the weight you would give to the testimony he has given." Nothing was said by the court to indicate error in his prior instruction.

It is clear that once a defendant takes the stand his character as to veracity is ...


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