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COMMONWEALTH v. BOBKO (03/30/72)

decided: March 30, 1972.

COMMONWEALTH
v.
BOBKO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lehigh County, Jan. T., 1969, No. 156, in case of Commonwealth of Pennsylvania v. Francis P. Bobko, Jr.

COUNSEL

Malcolm J. Gross, Assistant Public Defender, for appellant.

Thomas J. Calnan, Jr., Assistant District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 221 Pa. Super. Page 101]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

This is an appeal from appellant's conviction and sentence for armed robbery. Appellant raises a number of issues in this direct appeal, one of which I find to be meritorious.

Appellant's first contention is that the trial court erred in refusing to grant his motion for severance. The basis for this argument is that the evidence against a co-defendant, Edward Strohl, rested in large part upon the testimony of Strohl's girl friend, who testified that Strohl had admitted to her his planning and participation in the crime. Upon appellant's motion, the lower court instructed the jury that such testimony should only be used as against Strohl and not against appellant or his other co-defendant. Appellant's present argument is that the jury could not keep an open mind with respect to his guilt once they had heard Strohl's admissions.

Appellant, however, failed to object to these admissions on the basis of Bruton v. United States, 391 U.S. 123 (1968), which held that it was improper to allow the admissions of one defendant to be used against another defendant where the second defendant did not have an opportunity to confront the first defendant by cross-examination. At the time of the girl friend's testimony, appellant could have raised a Bruton objection, because at that time it would not have been known whether Strohl would take the ...


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