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COMMONWEALTH v. CLAITT (11/26/73)

decided: November 26, 1973.

COMMONWEALTH
v.
CLAITT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, Nos. 216 to 220, inclusive, in case of Commonwealth of Pennsylvania v. Gerald J. Claitt.

COUNSEL

Joseph N. Bongiovanni, III, with him Speese and Kephart, for appellant.

Norris E. Gelman, 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.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurred in the result. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen joins in this concurring opinion. Concurring Opinion by Mr. Justice Nix.

Author: O'brien

[ 454 Pa. Page 315]

Ellis Bogen, a druggist, was shot and killed during a robbery of his drug store at 2601 West Columbia Avenue, Philadelphia, on December 18, 1969. Appellant, Gerald J. Claitt, was arrested and brought to trial for his participation in this murder and he was convicted by a jury of burglary, robbery and murder in the first degree. Post-trial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.

The testimony at appellant's trial revealed the following facts: Appellant, armed with a .22 caliber revolver, entered the drug store first, followed by one Howard Kennedy, who was armed with a sawed-off shotgun. During the course of the robbery, Bogen was shot by Kennedy. The two men were seen fleeing from the store by a fifteen-year-old girl who worked at a dress shop in the vicinity. Appellant was also identified by William Levin, an employee of the drug store, who viewed appellant for some five to ten minutes during the crime.

An accomplice, Ricky Collins, who was present at the planning of the robbery and who played an active part in the robbery, testified as to appellant's participation in the robbery-murder. In addition, appellant gave the police a formal written statement in which he admitted his participation in the crime. Appellant had sought to suppress this statement and the oral statement that preceded it, but appellant's motion to suppress was denied after a pretrial hearing.

[ 454 Pa. Page 316]

Appellant's first allegation of error concerns what he alleges to be the prosecuting attorney's improper reference to the oral statement which appellant contends was, in fact, suppressed at the pretrial hearing. However, our examination of the record indicates that, although the court originally indicated an intention to suppress the oral statement, while admitting the written statement, he actually held the entire matter under advisement until he ultimately concluded, after both sides had submitted briefs, that both the oral statement and the written statement were admissible. Since appellant does not contest the correctness of the suppression court's decision that the written statement was admissible, and since, despite the contentions of appellant, either both statements were admissible or both statements were inadmissible [see Harrison v. United States, 392 U.S. 219 (1968)], we can find no merit in appellant's allegation of error.

Appellant's next allegation of error concerns the Commonwealth's use of a certain photograph in its cross-examination of Johnny Lee Sanders, who was called by the defense as an alibi witness. Sanders had been in the apartment of one Sandra Hightower from which the five robbers left and to which they returned. Sanders testified that appellant was in his presence while he was playing cards and that appellant never left the apartment during the time of the robbery and the killing of Ellis Bogen. When the five who were ultimately thought to be involved were first rounded up with others and taken to the Police Administration Building for questioning, the police took Polaroid snapshots of all of them. This was a necessary procedure because so many members of the gang were known only by their nicknames that, when talking with a fellow gang member, the police could not be sure of the correct name of the person to whom the member was referring. The assistant district attorney had nineteen

[ 454 Pa. Page 317]

    of these photographs marked for identification and used some of them in her ...


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