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COMMONWEALTH v. COOPER (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
COOPER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, No. 970, in case of Commonwealth of Pennsylvania v. John Earl Cooper.

COUNSEL

John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Douglas B. Richardson, Mark Sendrow, David Richman, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

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

Author: Spaeth

[ 230 Pa. Super. Page 205]

Appellant was tried and convicted by a jury of aggravated robbery. On this appeal he argues that the judgment of sentence should be reversed because a prior consistent statement of a key Commonwealth witness

[ 230 Pa. Super. Page 206]

    was improperly admitted, and because his counsel was not given adequate time to prepare closing argument. We reject both arguments and affirm.

I.

On direct examination, Hazel Fisher, a prosecution witness, testified that appellant planned the robbery, that his brother executed the robbery, and that the proceeds were divided among appellant, his brother and herself. During cross-examination of Ms. Fisher by appellant's counsel the following exchange occurred: Q. Tell me something: How long after [the robbery] were you arrested? A. Three days. . . . Q. Were you subsequently charged with this offense, the robbery? A. Yes, sir. Q. Were you tried on the case? A. Yes, sir. Q. What happened? A. I had a pre-sentence investigation. Q. Were you tried or did you plead guilty or what? A. Yes, sir; I pleaded guilty. Q. You pled guilty to the charge? A. Right. Q. Have you been sentenced yet? A. No, sir. Q. As a matter of fact, before the sentence is made, you are supposed to testify in this case. Wasn't that part of the deal? A. No, it wasn't exactly a deal. Q. Didn't they tell you it would go a lot easier if you testified against [appellant]? A. They said it may or may not help me when I got sentenced. Q. But they told you that before you pleaded guilty, didn't they. A. No. Q. They did not? A. No. Q. You mean you pleaded guilty first and they said well, if you testify it may go easier for you? A. Well, my lawyer had said that would I be willing to testify and I said, "Yeah." Then after I pleaded guilty, then he told me that it may or may not help. Q. If you testify against [appellant] it might go easier for you, right? A. No. He said it may or may not.

In an effort to counter this testimony the district attorney on redirect examination asked Ms.

[ 230 Pa. Super. Page 207]

Fisher whether any promises had been made concerning her sentence and she replied that none had. She also said that at the time of her arrest she had made a statement. Over the objection of appellant's counsel, the district attorney introduced this statement into evidence; it was ...


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