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COMMONWEALTH v. HIRSCH (11/16/73)

decided: November 16, 1973.

COMMONWEALTH
v.
HIRSCH, APPELLANT



Appeals from judgment of Court of Common Pleas of Lehigh County, June T., 1969, Nos. 183 and 192, in case of Commonwealth of Pennsylvania v. George Hirsch.

COUNSEL

Victor F. Cavacini, Assistant Public Defender, for appellant.

Howard R. Miller, Assistant District Attorney, and George J. Joseph, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone.

Author: Cercone

[ 225 Pa. Super. Page 495]

Late on an October night in 1967 the home of an elderly couple was intruded upon by at least four stocking-masked men, one of whom was armed with a pistol. After binding and gagging the couple, the men proceeded to ransack the house, and ultimately removed a safe which contained, according to the testimony of the victims, nearly $17,000 in cash, jewelry and rare coins and bills. The safe also contained $150,000 in bonds which the culprits apparently considered to be non-negotiable by them. The identity of the thieves remained a mystery to the police until September of 1968 when a Mrs. McMurtrie, the abused paramour of one of the co-defendants, informed. It is the testimony of this Mrs. McMurtrie which forms the basis of Hirsch's appeal.

Mrs. McMurtrie testified that she cohabited with the co-conspirator Strohl for many months preceding and succeeding the night of the robbery. She testified that

[ 225 Pa. Super. Page 496]

    on the night of the robbery she returned home to find Strohl and a Mr. Hirsch, whom she had known for 13 years, in the kitchen. Before them lay a table full of money, jewelry and old and unusual coins and bills which they were in the process of counting and sorting into piles. She then gave a hand in the effort. Shortly thereafter there was a knock at the door and Hirsch, drawing his gun, told her to see who it was. It was another of the co-defendants. The four then completed the counting, put the jewelry in a bag, and the three co-defendants each took a pile of money, each containing more than $3000. It should be noted that all this testimony was not objectionable so far as the appellant Hirsch was concerned, and while admittedly circumstantial, was greatly supportive in establishing the requisite conspiracy foundation.

Mrs. McMurtrie also testified that on other occasions Strohl described the robbery to her in Hirsch's presence, and that Hirsch and his accomplices discussed the extent and use of their proceeds from the crime. She described an incident where Hirsch and Strohl were out with her in an automobile and pointed out the victims' residence, Hirsch remarking as they passed, "We'll see you again sometime." With the recitation of these incidents and numerous others of similarly damaging import, she provided the Commonwealth with more than enough evidence to win convictions on the conspiracy and robbery charges.

Nevertheless, the appellant first argues that the lower court abused its discretion in refusing to grant the appellant's pre-trial motion for severance. The crux of the argument is that most of the testimony of the state's principal witness was hearsay objectionable as to Hirsch even though admissible against other co-defendants. Thus, appellant argues, he was obviously prejudiced by the joint trial, as indicated by the fact

[ 225 Pa. Super. Page 497]

    that the one alleged co-conspirator who was granted a severance was never ...


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