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COMMONWEALTH v. SMITH (01/19/73)

decided: January 19, 1973.

COMMONWEALTH
v.
SMITH, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, No. 1184, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1967, No. 826, in case of Commonwealth of Pennsylvania v. David Freeman, a/k/a David G. Smith.

COUNSEL

Andrea Levin, Assistant Defender, with her Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Louis A. Perez, Jr., Assistant District Attorney, with him James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Nix took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Pomeroy.

Author: Eagen

[ 450 Pa. Page 333]

David Freeman, a/k/a David G. Smith, was tried before a judge and jury on two indictments charging the burglary of adjoining stores located on North Broad Street in Philadelphia. On one indictment, Freeman was convicted, and on the other he was found not guilty. Post-trial motions were denied and a prison sentence was imposed. On appeal the Superior Court affirmed the judgment without opinion. Judge Spaulding filed a dissenting opinion in which Judges Hoffman and Jacobs joined. See 219 Pa. Superior Ct. 508, 281 A.2d 749 (1971). We granted allocatur and now reverse.

According to two police officers who testified for the Commonwealth at trial, Freeman and two others were caught in one of the stores shortly after midnight.*fn1 In defense, Freeman denied being in the store and committing

[ 450 Pa. Page 334]

    any burglary and testified he was taken into police custody while walking along the street near the store.

On cross-examination, redirect examination and recross-examination, the following then ensued:

"[By Mr. Levine, assistant district attorney]: Q. Do you know of any reason why Officer Marcus or McDevitt would say that you were inside of Chabe's wig shop? Mr. Kelly: Objected to, sir. The Court: Overruled. By Mr. Levine: Q. Did you understand my question, sir? A. Will you repeat it? Q. Yes. Do you know of any reason why Officers McDevitt or Marcus would say that you were found inside of Chabe's wig shop? A. Yes, I believe it extended from a police station. Q. I am sorry. Would you explain that, sir? A. After we was taken to the police station and he went through our identification cards I had a parole registration card. Mr. Kelly: Now, sir, I respectfully move for a mistrial. The Court: It was volunteered by your client. Mr. Kelly: It was on cross-examination over objection, sir. The Court: I overruled your objection. By Mr. Levine: Q. In any event, do you know of any reason why they would say that you were inside the store if you weren't? A. I couldn't make up any reason."

Subsequently on redirect the following examination was conducted: "By Mr. Kelly: Q. Mr. Freeman, you started to give a reason why you believe Officer Marcus and Officer McDevitt would testify as they have. Would you kindly tell that reason to the jury? A. It was on behalf of the registration card. Q. What was that card? The Court: Speak up, now. The Witness: When I was taken into the police station of Hunting Park when they were going through our things they found a registration card -- parole registration card. Q. What does that mean, parole ...


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