Appeal from judgment of Court of Common Pleas of Dauphin County, No. 1801 of 1972, in case of Commonwealth of Pennsylvania v. Herbert Johnson.
Clarence B. Turns, Jr., Assistant Public Defender, for appellant.
Marion E. MacIntyre and Rolf W. Bienk, Deputy District Attorneys, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.
[ 227 Pa. Super. Page 97]
The appellant, Herbert Johnson, was found guilty of aggravated robbery after a trial by jury on October 6-10, 1972, and sentenced on December 21, 1972, to serve 7 to 15 years in prison. He filed neither posttrial motions nor a direct appeal, but later filed a post-conviction hearing petition which was dismissed by the court below without a hearing on April 4, 1973. Appellant then filed, on July 10, 1973, a petition for the allowance of an appeal nunc pro tunc, which was granted by order of the Superior Court, per Jacobs, J., on July 31, 1973.
On this direct appeal, nunc pro tunc, appellant contends that the trial court erred in permitting the introduction
[ 227 Pa. Super. Page 98]
into evidence of a co-defendant's statements which implicated appellant in the crime, when the co-defendant did not take the stand. This, appellant argues, violated his right to confront his accusers, guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth. We agree with appellant that such error was not harmless error and, therefore, will reverse the order of the lower court and remand for a new trial.
The testimony taken at trial revealed the following facts: On May 19, 1972, a man later identified as the appellant by a teller, other bank employees and the co-defendant, Robert Hagood, walked into the bank and, stating that he had a gun, handed the teller a note which told her to give him the money she had. The teller gave him the cash in her drawer, which amounted to $5,017.00. Included in this amount was the "bait money" the teller also slipped into the robber's bag. "Bait money" is money with serial numbers the bank had prerecorded and which is kept separate from the funds a teller normally dispenses during the course of a day's business. The "bait money" in this case consisted of $1,000.00 in marked twenty dollar bills.
Following the robbery the police were summoned and began their investigation of the crime. They obtained a description of the robber from the teller and other bank employees who had seen him leaving the bank. One of the officers, Officer Gates, recognized Robert Hagood, who was standing outside the bank, as the man he had seen with the appellant earlier in the day in the vicinity of the bank. Officer Gates asked Hagood if he had been seen earlier that day with the man the police were now seeking. According to the officer, Hagood said he had. The officer then asked if Hagood would accompany him so that he could identify the appellant, which Hagood subsequently did.
[ 227 Pa. Super. Page 99]
The appellant was apprehended shortly afterwards a few blocks from the bank. He had in his possession $4,897.00, including 44 of the 50 twenty dollar bills used as "bait money" by the bank. (The appellant testified that he had won the this money gambling in Las Vegas and Pittsburgh ...