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COMMONWEALTH v. TOTH (11/28/72)

decided: November 28, 1972.

COMMONWEALTH
v.
TOTH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Berks County, No. 186 of 1971, in case of Commonwealth v. Louis Toth.

COUNSEL

James M. Potter, with him Liever, Hyman and Potter, for appellant.

Grant E. Wesner, Deputy District Attorney, with him Robert L. Van Hoove, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 223 Pa. Super. Page 355]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant contends that the trial court committed reversible error in not granting him a new trial because of prejudicial remarks which the prosecutor made during the course of his closing argument. I do not need to reach the appellant's other contentions because I believe that the prosecutor's remarks necessitate the granting of a new trial.

Appellant asserted that he was innocent of the charges lodged against him, but that his alleged partners in crime implicated him in order to obtain leniency for themselves. To establish his innocence, appellant presented his alleged co-felons' fellow prisoner who testified that the co-felons had stated that they intended to implicate the appellant for their own benefit. The prosecutor objected to the admission of these statements into evidence on the ground that they were hearsay. Defense counsel correctly responded that the remarks were not offered for the truth of the matter, but to prove that the statements were made. The trial judge admitted this testimony. During his summation the prosecutor said: "In addition, McDonald's [the alleged co-felons' fellow prisoner] testimony was very interesting. I objected because he was testifying as to all these things that Barlow and Taggart [the alleged co-felons] said in response to the questions asked by Mr. Potter [the defense attorney], as I recall, said, 'Well, we're not entering this for the truth of it.' In other words, Mr. Potter said that they weren't putting this in because it was true. I had no idea why it was put in, but apparently Mr. Potter didn't believe it." (N.T. p. 160). After these words were uttered, the defense

[ 223 Pa. Super. Page 356]

    counsel immediately moved for a mistrial which ...


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