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COMMONWEALTH v. FERGUSON (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
FERGUSON, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, No. 1345, affirming order and judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1967, No. 1003, in case of Commonwealth of Pennsylvania v. John R. Ferguson.

COUNSEL

Thomas C. Carroll, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Milton M. Stein, Assistant District Attorney, with him Edward B. Greene, 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 and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: O'brien

[ 446 Pa. Page 26]

Appellant was tried on a charge of aggravated robbery before a judge and jury in Philadelphia County in October of 1968, found guilty and sentenced to a term of two to ten years in prison. Post-trial motions were filed and denied, the Superior Court affirmed, and we allowed an appeal.

Appellant alleges two grounds for reversal. First, he claims that he has been twice placed in jeopardy in this case. Secondly, he alleges that his arrest was illegal and that, therefore, the out-of-court identification and the seizure of certain evidence were tainted and should have been suppressed.

On April 26, 1968, appellant came before the trial court for trial on Bills 1001 to 1003. Bills 1001 and 1002 charged appellant with aggravated robbery and conspiracy with one Rene Ferguson against Chester

[ 446 Pa. Page 27]

Jordan. Bill 1003, the one here involved, charged appellant with aggravated robbery of Jack Goldberg. A jury was empaneled and the first witness, Chester Jordan, was called. After the witness began his testimony, and as he was about to testify concerning identification, defense counsel advised the court that a motion to suppress identification testimony was still outstanding. The court excused the jury and immediately began taking testimony on the motion. The court then recessed for the weekend.

On Monday morning, the court was informed that Jack Goldberg, the Commonwealth's key witness on Bill 1003, was ill and would not be able to testify. The district attorney stated that Mrs. Goldberg had called and said her husband was ill, suffering from subclinical pneumonia. He then said that he contacted the physician who supposedly had made that diagnosis and was told that the doctor had examined Mr. Goldberg on Saturday and that at that time Mr. Goldberg had a bad cough and a temperature of 101 degrees. The doctor would not say, however, what Mr. Goldberg's condition was, nor would he give a prognosis. This was all stated out of the hearing of appellant's counsel, who was late in arriving, but who was present for the remainder of the colloquy on this point.

The district attorney explained that Mr. Goldberg was a necessary witness, first on Bill 1003, but also to establish the validity of the whole identification process. The court then explained to defense counsel that the witness had pneumonia and asked what he suggested. Defense counsel thought that the bills could be severed and that trial could then proceed as to the bills where Chester Jordan was the victim. Earlier, a motion for severance had been denied. The district ...


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