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COMMONWEALTH v. OLIVER (09/12/68)

decided: September 12, 1968.

COMMONWEALTH
v.
OLIVER, APPELLANT



Appeals from judgments of sentence of Court of Quarter Sessions of Philadelphia County, Jan. T., 1967, Nos. 2260 and 2261, in case of Commonwealth of Pennsylvania v. John Oliver.

COUNSEL

Benjamin Lerner, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

David L. Creskoff, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Per Curiam

[ 213 Pa. Super. Page 147]

Judgments of sentence affirmed.

Disposition

Judgments of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant was found guilty by a jury of the crimes of burglary and rape on July 6, 1967. On February 9, 1968, appellant's motions for arrest of judgment and new trial were dismissed. He was sentenced to a term of not less than 10 nor more than 20 years on each bill of indictment, such terms to run concurrently. This appeal followed.

[ 213 Pa. Super. Page 148]

The sole question raised on appeal is whether the trial court erred in admitting the testimony of a juvenile co-defendant, taken at a juvenile hearing, when it was proven that the juvenile co-defendant was not available to testify at appellant's trial. Specifically, appellant alleges that the admission of this testimony was violative of his right of confrontation of witnesses guaranteed by the sixth amendment and was not within the purview of the Act of May 23, 1887, P. L. 158, ยง 3, 19 P.S. 582.

To fully understand the substance of appellant's allegations, it is first necessary to review the factual background of the case. Appellant and three other persons allegedly forced the prosecutrix to have sexual intercourse against her will on January 1, 1967. After the alleged attack, the prosecutrix went to the police, and appellant was arrested shortly thereafter. A preliminary hearing was held on ...


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