Appeal from order of Superior Court, Oct. T., 1971, Nos. 994 to 997, inclusive, affirming judgment of sentence of Court of Common Pleas of Delaware County, Dec. T., 1969, Nos. 481, 482, 483 and 486, in case of Commonwealth of Pennsylvania v. Allen Coades.
David E. Auerbach, Assistant Public Defender, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino.
The appellant, Allen Coades, was found guilty by a jury of burglary, robbery, larceny, and conspiracy. Post-trial motions were denied and the appellant was sentenced to two to four years imprisonment. The Superior Court affirmed the judgment of sentence in a per curiam order. Commonwealth v. Coades, 220 Pa. Superior Ct. 745, 286 A.2d 912 (1971). The appellant's petition for allowance of appeal to this Court was then granted.
The appellant was jointly indicted with Mark Colder and Foster Blagman. The charged offenses arose out of the robbery of the Suburban Loan Company on July 24, 1969. Blagman's case was severed. He then pleaded guilty only to the conspiracy charge, a misdemeanor, and received a sentence of three months probation. The district attorney did not proceed on any of the felony charges, and his petition for a nolle pros of all other indictments against Blagman was granted. The appellant
and Mark Colder were tried jointly and Blagman appeared as a witness against them for the prosecution.
The appellant claims error in that: (1) the defense was not permitted to cross-examine Blagman about his plea of guilty to a misdemeanor and the nolle prossing of the more serious felony charges for which he had been jointly indicted with the appellant and Mark Colder and (2) the trial court refused a request by the defense that the jury be charged that Blagman's testimony should be viewed with caution since he was an accomplice.
In the cross-examination of Blagman, who testified for the prosecution, the defense wanted to show Blagman's bias in testifying against the appellant. The defense wanted to ask Blagman about his indictments for the same crimes, the nolle prossing of the felony charges by the district attorney, and his plea of guilty to the misdemeanor charge. The trial court erroneously excluded the proposed cross-examination.
In refusing to allow the proposed cross-examination of Blagman, the trial court relied on the Act of March 31, 1860, P. L. 427, § 51, 19 P.S. § 831, which provides: "No person tried for [any] misdemeanor shall be liable to be afterwards prosecuted for felony on the same facts. . . ." (Emphasis added.) The trial court concluded that under the above Act Blagman could never be tried on the nolle prossed indictments since he had pleaded guilty to the conspiracy charge. We must reject this conclusion. The facts which support a conviction for a conspiracy to commit a crime are not necessarily the same facts required to convict for the crime itself and, thus, the Act may not be applicable. Moreover, even if the above Act were applicable and Blagman could ...