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COMMONWEALTH v. LOCKHART (04/11/74)

decided: April 11, 1974.

COMMONWEALTH
v.
LOCKHART, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1972, No. 676, in case of Commonwealth of Pennsylvania v. Tyrone Lockhart.

COUNSEL

Raymond P. Forceno, and Brobyn & Forceno, for appellant.

David Richman, Milton M. Stein, and James T. Ranney, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

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

Author: Hoffman

[ 227 Pa. Super. Page 504]

Appellant sets forth numerous allegations of errors, all of which, on the state of the record, we must dismiss as either waived or insufficiently established.

Briefly, Officer Scott of the Philadelphia Police, acting as an undercover agent, approached the appellant who was called "Frog", and asked him "What's happening?" The appellant took Scott to his apartment at 2022 Haggert Street, using a key to enter the

[ 227 Pa. Super. Page 505]

    premises, and sold him a packet later identified as heroin. Scott reported the incident to his superiors, and provided the police with a physical description of the appellant, his nickname, and the address. He then picked the appellant out of a group of photographs shown to him by the police. Appellant was arrested and charged with illegal possession and sale of narcotic drugs.

A Motion to Suppress was argued before the Honorable Matthew W. Bullock, Jr., Judge of the Common Pleas Court of Philadelphia, at which numerous references were made to the photograph. Appellant thereafter waived his right to a jury trial, and was tried before the same judge, sitting without a jury. Appellant was convicted and sentenced to a term of imprisonment of three to six years. Post-trial motions were orally submitted without argument and denied by the Court.

First, it is argued that the trial court erred in permitting references to be made to the appellant's photograph at time of trial, and in allowing the Commonwealth to introduce said photograph into evidence. Concomitantly, appellant argues that the trial judge should have transferred the case to another judge after having heard reference to the photographs in the pretrial suppression hearing. It is not disputed that the photograph, as viewed by Officer Scott at police headquarters, was taken from police files, and therefore, indicative of appellant's prior contacts with the police in unrelated criminal matters or investigations. In Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), our Supreme Court held that it was prejudicial and reversible error to make reference to the fact that the police had shown photographs of the defendant to the alleged eyewitnesses, since a "jury could reasonably conclude from the photographic reference [that there had been] prior criminal activity on the part of the defendant . . . ." 448 Pa. at 182. The fact that the trial judge,

[ 227 Pa. Super. Page 506]

    and not a jury, is acting as the trier-of-fact compels no different result. Commonwealth v. Rivers, 218 Pa. Superior Ct. 184, 279 A.2d 766 (1971). In the instant case, however, no objections were made by the defense attorney to said references, and, in fact, defense counsel first elicited testimony on the subject on cross-examination of Commonwealth's witness. Commonwealth's subsequent reference and introduction of the photograph on redirect examination was properly a response to the tactical maneuver practices by the defense. See, Commonwealth v. Battle, 225 Pa. Superior Ct. 378, 381, 310 A.2d 362 (1973). Likewise, having failed to object to Judge Bullock's presiding at ...


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