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COMMONWEALTH v. GUYTON (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
GUYTON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Philadelphia, June T., 1972, Nos. 1284 and 1285, in case of Commonwealth of Pennsylvania v. Darryl Guyton.

COUNSEL

Thomas C. Branca and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

David Richman, John H. Isom, Mark Sendrow, 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 Jacobs, J. Dissenting Opinion by Hoffman, J. Dissenting Opinion by Spaeth, J. Cercone, J., joins in this opinion.

Author: Jacobs

[ 230 Pa. Super. Page 169]

In this appeal, appellant challenges the admission into evidence of a gun and certain money seized by police and the identification made of him by the victim of the crime. Although the court below may have erred in denying appellant's motion to suppress such evidence, that error was at most harmless.

[ 230 Pa. Super. Page 170]

After the Commonwealth presented its case which included the introduction of the aforementioned evidence, appellant took the stand in spite of warnings by the lower court that he had a right not to take the stand and anything he said could and would be used against him. On direct examination, appellant testified that the victim's testimony at trial was inconsistent with her testimony at the preliminary hearing and also that he was arrested by a police officer other than the one who said he arrested appellant. On cross-examination, however, appellant admitted being at the scene of the crime with the gun in his pocket and leaving with a paper bag which the victim had filled with money. Under such circumstances, these admissions by appellant cured any alleged error by the court below in denying the motion to suppress the gun, the money, and the identifications. See Young v. Maryland, 455 F.2d 679 (4th Cir. 1972), cert. denied, 407 U.S. 915 (1972) (admission of supposedly illegally seized trench coat containing sperm stains held harmless error since defendant took stand and admitted wearing coat while having intercourse with rape victim); United States v. Smith, 450 F.2d 312 (3d Cir. 1971), cert. denied, 405 U.S. 932 (1972) (admission of tainted identification held harmless error since defendant took stand and admitted being in car with victim); Gladden v. Frazier, 388 F.2d 777 (9th Cir. 1968), aff'd, 394 U.S. 731 (1969) (admission of bloodstained clothes claimed to be illegally seized held harmless error since defendant took stand and testified as to affray and getting blood on his clothes); see also Commonwealth v. Greene, 456 Pa. 195, 317 A.2d 268 (1974).

[ 230 Pa. Super. Page 171]

Appellant argues that his testimony should not be permitted to cure the pre-trial rulings on the alleged illegal evidence because the introduction of such evidence entitled him to take the stand to offset the resulting prejudice. For authority, appellant cites United Page 171} States v. Puco, 453 F.2d 539 (2d Cir. 1971), cert. denied, 414 U.S. 844 (1973), which we find to be distinguishable. In Puco, the lower court prior to trial erroneously ruled that defendant's prior conviction could be used to impeach him. When defendant took the stand he was questioned on direct by his counsel regarding his prior conviction. The court held that defendant's own reference to his prior conviction did not preclude his right to attack the lower court's earlier ruling because he was entitled on direct to offset the prejudicial effect of that ruling. In the present case, the evidence in question was admitted during the Commonwealth's case. Appellant then took the stand and in no way attempted on direct to explain away or offset the effect of the introduction of that evidence. It was only on cross-examination that counsel for the Commonwealth extracted the damaging admissions from appellant that he was at the scene of the crime with a gun and ran off with the bag full of money.*fn1 It is clear that appellant did not take the stand for the purpose of offsetting the prejudice he earlier encountered.*fn2 Having taken the stand, appellant subjected himself to the risks of cross-examination. See Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046 (1972).

Appellant also complains that he did not intelligently and knowingly waive his right to a jury trial

[ 230 Pa. Super. Page 172]

    because he answered "yes" when asked if there was any promise being made for his waiver. However, the record reflects that when the court asked appellant about the promise, defense counsel immediately stated that no promise was made, but that appellant merely meant that he understood that no promise could be made. Appellant remained silent while his counsel made this explanation, ...


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