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COMMONWEALTH v. BUTLER (11/14/68)

decided: November 14, 1968.

COMMONWEALTH
v.
BUTLER, APPELLANT



Appeals from judgment of Criminal Courts of Delaware County, March T., 1966, Nos. 138 to 142, inclusive, in case of Commonwealth of Pennsylvania v. Lonnie Butler.

COUNSEL

Mervyn R. Turk, Assistant Public Defender, for appellant.

Ralph B. D'Iorio, Assistant District Attorney, with him Vram S. Nedurian, Assistant District Attorney, William R. Toal, First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

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

Author: Spaulding

[ 213 Pa. Super. Page 389]

On March 29, 1966, Lonnie Butler, appellant, was tried and convicted by a jury on two felony indictments

[ 213 Pa. Super. Page 390]

    charging robbery by assault, aggravated assault and battery and assault and battery with intent to kill, and two misdemeanor indictments charging violations of the Uniform Firearms Act and wantonly discharging a weapon. His initial sentence of a $500 fine and imprisonment of 2 1/2 to 5 years was vacated to permit him to take polygraph and "truth serum" tests. On May 5, 1967, he was resentenced to pay the fine and serve 2 to 4 years imprisonment and now appeals.

Appellant's convictions stem from an alleged robbery and shooting of one William Brown on January 23, 1965, in the City of Chester. At trial, the Commonwealth presented Brown and an eyewitness to the incident. Brown testified that appellant and an accomplice accosted him, forced him into a car, and took money from his wallet. Appellant allegedly shot Brown in the back after Brown had jumped from the car and had run about 3 yards in an attempt to escape. Brown stated that he had ample opportunity to see and identify his assailant and appellant acknowledged that he had known Brown for more than 20 years. Brown's testimony was supported by the eyewitness, a Mrs. Johnson, who testified to having seen appellant force Brown into the car at gunpoint. Appellant testified on his own behalf and denied that he participated in the robbery and shooting.

The State Trooper who had administered the polygraph examination indicated to the court that in his opinion appellant was not telling the truth about his innocence. In two sodium amytal tests, appellant stated that he was not involved in the robbery, that in fact no robbery had taken place, that Brown had been shot by a girlfriend, and appellant had been accused of the shooting because of hostility resulting from heavy gambling losses Brown had sustained from appellant a few years before the shooting. Both doctors

[ 213 Pa. Super. Page 391]

    who administered the tests indicated that in their opinion appellant was probably telling the truth. At a hearing on January 12, 1968, the lower court refused to grant a new trial on the basis of the results of the sodium amytal tests.

In asking for a reversal, appellant alleges: the trial court erred in failing to charge the jury on the weight to be given to the identification testimony; appellant was denied the right to a fair trial because of ineffectiveness of counsel; the trial court erred in failing to grant a new trial on the basis of the "truth serum" tests; and, the trial ...


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