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COMMONWEALTH v. SCANNELL (04/04/73)

decided: April 4, 1973.

COMMONWEALTH
v.
SCANNELL, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1972, No. 1925, in case of Commonwealth of Pennsylvania v. Charles Scannell.

COUNSEL

Drew Salamon, Assistant Defender, with him Michael L. Levy, and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

James J. Wilson, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 224 Pa. Super. Page 196]

The six judges who heard this appeal being equally divided, the judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.

[ 224 Pa. Super. Page 197]

Dissenting Opinion by Hoffman, J.:

In this appeal, appellant contends that he is entitled to a new trial because the Commonwealth improperly elicited from its own witness testimony that appellant had been involved in prior crimes.

Appellant was charged with larceny and receiving stolen goods, and was brought to trial before a judge sitting without a jury on April 14, 1972. The main witness for the Commonwealth was Officer Edward Cervonka, who began his testimony with the following remarks: "Q. Will you tell the Court the facts and circumstances [of the arrest], please? A. In the area of Cedar and Allegheny, knowing that major crimes -- (emphasis added)." This was immediately objected to, and sustained. The witness went on: "A. In the area of Cedar and Cambria, looking for a Charles Scannell wanted by Major Crimes -- (emphasis added)." This remark was likewise objected to, but this time the Court did not sustain, but rather engaged witness in the following colloquy: "The Court: He was wanted? The Witness: Wanted. The Court: Were you looking for him? The Witness: Looking for him. . . ." The District Attorney, thereupon, continued his questioning of the witness, in the following manner: "Q. Now, did you recognize the defendant by knowing his name? Did you recognize his face? A. I'd know Charles Scannell. Q. You have had contact with him in the past; is that correct? A. A few times. Q. And you indicated that he was wanted by Major Crimes; is that correct? A. Right."

In the course of his testimony, Officer Cervonka indicated that he observed appellant driving a car, which, he later learned, was stolen. According to the officer, appellant fled at that time and was not apprehended. Appellant produced three alibi ...


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