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COMMONWEALTH v. GLADFELTER (04/03/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 3, 1974.

COMMONWEALTH
v.
GLADFELTER, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas of York County, Jan. T., 1972, No. 327, in case of Commonwealth of Pennsylvania v. Charles E. Gladfelter.

COUNSEL

Glenn C. Vaughn, Assistant Public Defender, for appellant.

J. Christian Ness, Assistant District Attorney, and Morrison B. Williams, First Assistant District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Price, J., dissents.

Author: Hoffman

[ 226 Pa. Super. Page 539]

This is an appeal from a judgment of sentence for aiding a prisoner to escape from the lawful custody of a police officer.*fn1

On January 20, 1972, at approximately 1:00 p.m., an off-duty Hanover Borough police officer saw appellant driving an automobile with two passengers, Robert Dull and Charles Bechtel. On that morning, the police officer had seen a warrant for Dull's arrest, charging him with assault and battery. The officer stopped the car, identified himself to appellant, and informed him that there was a warrant out for Dull's arrest. The officer then went around to the passenger side of the car told Dull that he was under arrest, and ordered him out of the car. When Dull got out, he struck the officer and ran down the street. The officer pursued, but could not apprehend him.

A few minutes later, Jacob Bechtel, who observed the entire incident, saw Dull return to the vehicle, and re-enter it from the passenger side, immediately after

[ 226 Pa. Super. Page 540]

    which the car sped away. Three hours later, the police stopped the car and arrested the occupants. At that time, Dull was driving the automobile. From the facts outlined above, the jury could properly infer that appellant aided Dull's escape from the police officer.

Appellant first contends that Dull was not legally in the officer's custody because he did not possess the warrant at the time of arrest.*fn2 Appellant disputes neither the existence of the warrant nor the basis for its issuance, but contends that the officer must have the warrant in order to effectuate a legal arrest. While it is generally accepted that a police officer may not make a warrantless arrest for a misdemeanor not committed in his presence, see Commonwealth v. Reeves, 223 Pa. Superior Ct. 51, 297 A.2d 142 (1973), there is no requirement that the arresting police officer actually have in his possession a warrant previously issued and present said warrant to the arrestee, especially where, as here, the arrestee flees the officer who attempts to make the lawful arrest.*fn3 Compare, Whiteley v. Warden, 401 U.S. 560, 568 (1971).

Appellant next contends that the court erred in admitting testimony concerning the existence of the arrest warrant. However, the terms and contents of the warrant were not in issue in the court below. Thus, the

[ 226 Pa. Super. Page 541]

    best evidence rule, upon which appellant relies, is not applicable to the facts of the instant case where the existence and not the terms of the warrant are in issue. Commonwealth v. Gazal, 185 Pa. Superior Ct. 91, 137 A.2d 814 (1958); I Henry, Pennsylvania Evidence ยง 282 (1953).

Appellant also argues that he is entitled to a new trial because the court did not follow the proper procedures for supplementing the trial transcript.*fn4 The transcript as originally lodged did not contain the jury's verdict. The trial judge immediately notified the stenographer and directed her to prepare and file a supplemental transcript setting forth the verdict. The transcript was subsequently filed and certified by the trial judge as part of the record. The accuracy of the transcript is not disputed: there is no question but that the jury returned a verdict of guilty, and that the supplemental transcript is a verbatim report of the occurrences at the time the jury rendered its verdict.

Appellant contends that the failure of the court below to follow the strict letter of the Act of 1911 entitled

[ 226 Pa. Super. Page 542]

    him to a new trial, despite the absence of prejudice or doubt as to the accuracy of the transcript. Specifically, appellant contends that the court erred in not affording him a hearing after the discovery of the omission from the record. In Commonwealth v. Kulik, 420 Pa. 111, 216 A.2d 73 (1966), our Supreme Court held that a trial judge's ex parte alteration of a portion of the jury charge was reversible error, although it was not shown that the alteration was incorrect. There, the alteration was made after the appeal was filed, thus depriving the appellant of any opportunity to challenge the accuracy of the transcript. In the instant case, however, the trial court did not inject into the record personal recollection of trial occurrences. The court merely ordered a completion and not an alteration of the transcript as originally lodged. Had there been any basis for challenging the accuracy of the transcript, appellant could have done so in the court below, rather than asserting the lack of a hearing as grounds for reversal on appeal. We are satisfied that the integrity of the stenographer's transcript has been maintained, that there has been substantial compliance with the statute, and that appellant has not been prejudiced by any deviation therefrom.

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.


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