Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1971, No. 1156, in case of Commonwealth of Pennsylvania v. Kenneth Dill.
Steven G. Farber and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Hoffman, J. Spaulding and Cercone, JJ., join in this dissenting opinion.
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The six Judges who heard and decided this appeal being equally divided, the judgment of sentence is affirmed.
Judgment of sentence affirmed.
Dissenting Opinion by Hoffman, J.:
This appeal involves the question of whether basic and fundamental error, requiring a new trial, was committed when on direct testimony the Commonwealth elicited from its witness references to prior or other crimes committed by the appellant and unrelated to the charges for which he was being tried.
Appellant, Kenneth Dill, was arrested and charged with two counts of aggravated robbery, and one of carrying a concealed deadly weapon, stemming from an incident which occurred on November 17, 1970. On that date, two youths walking in the vicinity of 46th and Lancaster Avenue were robbed by five persons. The complaining witness, Gerrcia Wright, testified that the first time he saw appellant after the robbery was at a hearing in a police station seven months later. Originally, warrants had been issued for five persons named by the other victim. Appellant's name had not appeared on any of the warrants. Instead, appellant's brother, Jerome Dill, was named and arrested. At Jerome's hearing, however, Mr. Wright identified appellant, and not Jerome, as one of the five robbers.
On October 13, 1971, appellant was tried by the trial judge sitting without a jury, and was convicted of aggravated robbery as laid in Bill of Indictment No. 1156. Demurrers were sustained on the other charges. Appellant was sentenced to a term of imprisonment of not less than two nor more than five years.
On direct examination by the Commonwealth, and in response to a question asking for a narrative as to what took place at the hearing in June of 1971, and how it came ...