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COMMONWEALTH v. JOHNSON (03/19/70)

decided: March 19, 1970.

COMMONWEALTH
v.
JOHNSON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lycoming County, Feb. T., 1968, No. 89, in case of Commonwealth of Pennsylvania v. Lee Port Johnson, Jr.

COUNSEL

Don M. Larrabee, II, for appellant.

Allen E. Ertel, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 216 Pa. Super. Page 246]

The six Judges who heard this appeal being equally divided, the judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Spaulding, J.:

I respectfully dissent from affirmance of the judgment of the court below.

Lee Port Johnson, appellant, appeals from the order of the Criminal Division of the Court of Common Pleas of Lycoming County, of June 13, 1969, denying his motion for a new trial after conviction for burglary and larceny, and from judgment of sentence following that order on July 24, 1969. He contends that the court erred in permitting the Commonwealth's chief witness to testify that he (the witness) had changed his story of the crime after taking a lie detector test.

The witness, Robert Miles, testified on direct examination that he and appellant had committed the burglary together. Three fellow prisoners of Miles' then testified for the defense that when Miles first discussed the case with them, he said he had committed the burglary alone; but that a week or ...


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