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COMMONWEALTH v. CARTER (06/22/71)

decided: June 22, 1971.

COMMONWEALTH
v.
CARTER, APPELLANT



Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1969, Nos. 1583, 1584, and 1585, in case of Commonwealth of Pennsylvania v. Melvin Carter.

COUNSEL

Francis S. Wright, Assistant Defender, with him Jon P. Axelrod, and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

J. Bruce McKissock, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy 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 Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 219 Pa. Super. Page 282]

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County by the appellant, Melvin Carter; and from the denial of post-trial motions.

This Carter is well known to the criminal courts. He is a chronic and hardened law violator. The decision rests heavily on the able opinion of the court below written by President Judge G. Thomas Gates of Lebanon County, sitting specially.

On the morning of April 25, 1969, two armed men entered the A. & P. Supermarket on Spring Garden Street, Philadelphia, and robbed the store of $325.00 in cash. During the robbery the patrons and employees of the store were made to go into a back room of the store while the manager remained with the robbers and was forced to open the safe.

Upon obtaining the money they fled. The manager pursued them, stopped a passing police car and directed the officers in the car, Robert Borcich and William Stephens, to stop the men who had robbed the store. Officer Palermo joined the other policemen. They apprehended Carter a short distance from the store. He was brought back to the store and identified by McFaul, the manager and others in the store as one of the holdup men.

He was found guilty of aggravated robbery, burglary and carrying a concealed deadly weapon. Post-trial motions were denied and he was sentenced to two concurrent terms of five to twenty years imprisonment.

The principal contention of the appellant is that his constitutional rights were violated in that although he was present at counsel table; he was not present in

[ 219 Pa. Super. Page 283]

    chambers during a conference between the District Attorney, his counsel and the trial Judge concerning a jury problem. During a trial recess, one principal juror and one alternate observed the appellant being placed in handcuffs. This was called to the attention of the trial Judge and he called counsel into chambers and interrogated the two jurors and found that they had not discussed what they observed with the other jurors. He then dismissed the juror and the alternate and substituted the remaining alternate for the juror excused.

We adopt a portion of the well-reasoned opinion of the court below dealing with the circumstances as follows:

"Defendant's first contention is that it was error for the court not to grant a mistrial after the two jurors saw him in handcuffs. He says that it is well-settled law that the mere display of a nonconvicted defendant in handcuffs before the jury is grounds for a mistrial. We disagree. Neither of the two cases cited by the defendant support his contention. Commonwealth v. Reid, 123 Pa. Superior Ct. 459 approved that which was said in 16 C.J. 819, par. 2075. 'A person undergoing trial for a criminal offense should be free from shackles, unless, in the sound discretion of the trial court, they are deemed necessary to restrain him from doing violence to others, or ...


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