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decided: July 2, 1973.


Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1969, Nos. 734 and 735, in case of Commonwealth of Pennsylvania v. Allen Tucker.


Morris Paul Baran, with him Harry D. Sporkin, for appellant.

James T. Ranney, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Pomeroy dissents. Dissenting Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones joins in this dissenting opinion.

Author: Nix

[ 452 Pa. Page 586]

Appellant was found guilty by a jury of first-degree murder and aggravated robbery, and, after denial of his post-trial motions, he was sentenced to life imprisonment for the murder and ten to twenty years for the aggravated robbery, the sentences to run concurrently. The judgment of sentence on the murder conviction was appealed here and the judgment of sentence on the aggravated robbery conviction was appealed to the Superior Court. The Superior Court certified the latter appeal to this Court in order that we might consider both matters together.

A serious question is raised concerning the trial court's handling of the prosecution's interrogation of Cornell Berry, who had initially been arrested and charged with the appellant for the commission of these crimes and was subsequently acquitted in a separate jury trial of the charge of murder.*fn1 Berry had been called as a witness by the Commonwealth in anticipation that his testimony would conform with his statements during his trial where he had placed the entire responsibility for the murder upon the appellant.

The pertinent facts surrounding the incident were: On February 11, 1969, someone, attempting to rob James Costello in the men's room of the Family Theater in Philadelphia, stabbed Costello in the neck. Costello later died of the wound. Appellant, Allen Tucker, twenty-years old at the time, and Berry were seen running up the stairs from the bathroom soon after the

[ 452 Pa. Page 587]

    killing and later both were arrested and charged with the crime. Tucker, after being warned of his constitutional rights, gave the police an accurate description of how the crime took place, but originally claimed that he had seen someone else commit it. Later, when confronted by a statement given by Berry which placed the blame on Tucker, Tucker gave a statement, the contents of which admitted the stabbing and attempted robbery of the deceased.

When Mr. Berry took the stand at the request of the Commonwealth he was first identified by the assistant district attorney as a participant in the incident (without a disclosure to the jury of the outcome of that proceeding) and then in response to questioning he admitted being present in the Family Theater in the early morning hours of February 11th. He testified that between four-thirty and five o'clock in the morning he had seen the appellant and the victim in the general area where the crime occurred. He was then asked if he had seen a knife, to which he responded he had not after first unsuccessfully attempting to invoke the protection of the Fifth Amendment to the United States Constitution. It was at this juncture that the Commonwealth sought and was granted without objection by the defense the right to cross-examine the witness. The following colloquy ensued: "By Mr. Stevens: Q. Do you recall -- near the top of the page -- Mr. Machen saying to you in the course of your trial, 'All right, what is the next thing that happened?' Then the Court intervened and said something and you finally made this answer -- this is about two-thirds of the way down the page. This is the answer by Charles Berry, 'Purnell went upstairs, Squeaky said I am going to get some money. I said I am not for hurting nobody.' Do you recall saying that at your trial? Mr. Baran: Your Honor,

[ 452 Pa. Page 588]

    at this time may we see you at side bar please? The Court: All right. (Whereupon a side bar discussion was held as follows.) Mr. Baran: If Your Honor please, at this I am going to object to Mr. Stevens' questions on the fact he is using this cross-examination for the purpose of introducing the evidence, the entire testimony ...

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