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COMMONWEALTH v. EHLY (05/02/74)

decided: May 2, 1974.

COMMONWEALTH
v.
EHLY, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, Nos. 439 and 444, affirming judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1967, Nos. 720, 723 to 726, inclusive, in case of Commonwealth of Pennsylvania v. Douglas Ehly.

COUNSEL

A. Charles Peruto and Lorch, Ryan, Peruto & Vitullo, for appellant.

Maxine J. Stotland, Norris E. Gelman, James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen and Mr. Justice Nix concur in the result. Mr. Chief Justice Jones dissents. Concurring Opinion by Mr. Justice Pomeroy.

Author: O'brien

[ 457 Pa. Page 227]

On January 27, 1967, an automobile owned by a Philadelphia City Policeman was broken into while street-parked, and the officer's official hat and badge were stolen.

On February 14, 1967, three men forced their way by gunpoint into the Manzo residence on Germantown Avenue. The residents, four in number, were tied up. A safe in a subcellar was broken into and $18,000 and a valuable diamond ring were stolen.

Appellant, Douglas Ehly, was arrested in Florida, extradited and tried on a series of charges based on the before-related crimes. He was acquitted of burglary based on the automobile entry, but was convicted of receiving stolen goods in connection with this occurrence. Ehly was convicted of armed robbery and related

[ 457 Pa. Page 228]

    crimes based on the Manzo occurrence. He received a sentence of imprisonment of two to eight years on the robbery conviction. Sentences of imprisonment for lesser periods to run concurrently were imposed on the other convictions. On appeal, the Superior Court unanimously affirmed the judgments without opinion. We granted allocatur to examine several allegations of error raised by appellant.

First, we must deal with appellant's argument that he is entitled to an acquittal on the charge of receiving stolen goods because the evidence was insufficient to support his conviction for possession of the stolen police badge. The badge was discovered by the police during a search, conducted pursuant to a warrant, of the premises at 4207 Penn Street, which appellant shared with his girl friend, now his wife, Barbara Ehly. At the time of the search, February 20, 1967, appellant was in Florida. The warrant specified "guns and stolen property" and the badge was discovered in Mrs. Ehly's purse. The only evidence which linked appellant to possession of the badge was the following hearsay testimony, which came out during cross-examination of Officer Chitwood at trial: "By Mr. Peruto, Defense Attorney: Q. What evidence did you have that this handbag was in possession of this defendant? A. None. Q. What evidence did you have that this badge was in the possession of this defendant? A. The woman that was living with him, Barbara Ehly, stated to me he had given her the badge. Q. She stated that to you? A. That is correct."

No objection was made to this testimony at the time. Moreover, since it was elicited as a direct result of appellant's counsel's cross-examination, and, despite the contention of appellant, was a direct response to a question put to the witness by appellant's counsel, appellant, in the absence of a motion to strike, cannot be heard to contend that the admission of the remark

[ 457 Pa. Page 229]

    constitutes reversible error. Commonwealth v. Beach, 445 Pa. 257, 260, 284 A.2d 792 (1971); Commonwealth v. Camm, 443 Pa. 253, 271, 277 A.2d 325 (1971). Consequently, the evidence is part of the record and it may now support appellant's conviction. The fact that Mrs. Ehly testified at trial that she had never told the police that appellant had given her the badge and that her son, Raymond Ehly, had found the badge in the street, a fact to which Raymond Ehly also testified, makes no difference. The jury was free to believe Mrs. Ehly's earlier statement to the police rather than her testimony, and the statement that appellant gave her the badge would amply support the conviction for receiving stolen goods. Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971). Cases such as Commonwealth v. Maybee, 429 Pa. 222, 239 A.2d 332 (1968) and Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963), are of no help to appellant because the hearsay in those cases came on direct examination and was admitted over objection. In fact, in Maybee, supra, even though the conviction was based solely upon the hearsay testimony, the defendant was not granted a motion in arrest of judgment. Rather he was simply awarded a ...


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