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COMMONWEALTH v. WALLACE (06/14/73)

decided: June 14, 1973.

COMMONWEALTH
v.
WALLACE, APPELLANT



Appeal from judgment of Court of Common Pleas of Montgomery County, April T., 1971, No. 445, in case of Commonwealth of Pennsylvania v. William L. Wallace.

COUNSEL

Stanley M. Shingles, with him Fineman & Fineman, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman. Watkins and Jacobs, JJ., dissent. Wright, P. J., would affirm on the opinion of the court below.

Author: Hoffman

[ 225 Pa. Super. Page 17]

In this appeal from a judgment of sentence for failing to stop and render assistance at the scene of an accident, appellant contends; first, that the conduct of the prosecuting attorney prejudiced his right to a fair trial; and, second, that inadmissible hearsay evidence was introduced against him to prove an essential element of the crime.

The accident occurred in the early morning of April 20, 1971. After the collision, both cars careened for a considerable distance so that neither was visible to the other when they finally stopped. The driver of one of the vehicles was not present when the police arrived. Papers bearing appellant's name and address were found in the car, and the police proceeded to appellant's home in an adjacent apartment complex where he was arrested.

The first instance of prosecutorial misconduct related to the district attorney's attempt to produce a chemical expert to testify as to a Mobat Sobermeter test administered to appellant shortly after the accident.

[ 225 Pa. Super. Page 18]

On the second day of trial, after a recess had been granted to allow the Commonwealth time to produce the expert, the following discussion took place in front of the jury:

"The Court: All right, . . . are you ready?

"[District Attorney]: Well, Your Honor, because of the human element in these cases, the Commonwealth cannot produce its last witness. I have been notified that he is on his way over from the DeKalb Fornance Laboratory. I have been notified that since approximately ten after nine when one of the secretaries finally got through after the phone was busy for some period of time.

"I would ask the Court to grant me an extension of time in view of the nature of the testimony of this ...


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