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COMMONWEALTH v. THOMPSON (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
THOMPSON, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, No. 614, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1965, No. 238, in case of Commonwealth of Pennsylvania v. Ervin Thompson.

COUNSEL

Stanley M. Shingles, with him Fineman and Fineman, 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.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen and Mr. Justice Barbieri join in this opinion.

Author: Roberts

[ 444 Pa. Page 314]

In this appeal, appellant Ervin Thompson asserts, inter alia, that he was denied the fundamentals of due process at his non-jury trial because he was foreclosed from presenting evidence on his behalf. Our examination of the record reveals appellant's trial fell below requisite minimum standards of due process, and accordingly a new trial is ordered.

The circumstances surrounding appellant's conviction are as follows. Thompson was indicted on charges of carrying a concealed deadly weapon and larceny of a motor vehicle. He pleaded not guilty on the larceny bill, and a demurrer was eventually sustained on the weapons charge.

At his trial, appellant was represented by court-appointed counsel. The Commonwealth called three witnesses. James Harris, the owner of the stolen motor vehicle, testified as to the events on the evening of June 18, 1965 when he discovered the theft. Officer John Smith, the arresting officer, gave evidence concerning the circumstances which led him to apprehend appellant.

[ 444 Pa. Page 315]

Detective Ralph Bozini, who had been assigned to investigate the case, testified over objection as to certain statements allegedly made by appellant concerning the ownership of an automatic gun confiscated when appellant was arrested.

After the demurrer to the weapons charge was sustained, appellant attempted to put on his evidence. The record discloses the following: "Ervin Thompson, being duly sworn, was examined and testified as follows: By Mr. Hogan: Q. Where do you reside? A. 568 Washington Avenue. Q. Philadelphia, Pennsylvania? A. Yes. Q. What is your age? A. 19 years old. Q. You have heard the testimony that you were found on June 18 in possession of a car which had been reported stolen? A. Yes. Q. Will you explain to his Honor how you got possession of the car? A. I got off at Washington Avenue. Q. Explain it. A. I got off at Washington Avenue, and went into a bar, and I found some boys, and I met a Willie Price, and I had put him off at the bar. Then I took my girl friend to my mother's house, and that is where I got arrested. Q. You originally took these keys from the street? A. Yes. By The Court: Q. You no doubt had the keys? A. The keys were in the car. The Court: The verdict is guilty of larceny, and on Bill 238 the sentence is to the reformatory at Camp Hill. Testimony Closed."

In February, 1969, appellant filed a petition pursuant to the Post Conviction Hearing Act, asserting, among other things, he had not been informed of his right of appeal, he had been denied the effective assistance of counsel, and his constitutional rights had been abridged. After a hearing, appellant was allowed to file motions for a new trial and in arrest of judgment as though timely filed. The motions were ...


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