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COMMONWEALTH v. GADSON (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
GADSON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1974, Nos. 2126 to 2128, inclusive, in case of Commonwealth of Pennsylvania v. Michael Gadson.

COUNSEL

Andrea Commaker Levin, Douglas Riblet, and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

Guy R. Sciolla, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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 Hoffman, J.

Author: Hoffman

[ 234 Pa. Super. Page 649]

Appellant raises four objections to his conviction in the court below. As two of these objections have not been properly preserved for direct appeal, and the remaining two lack merit, the judgment of sentence must be affirmed.

The facts giving rise to this case, as found by the trial judge, are as follows: On February 14, 1974, Officer Holmes, an undercover policeman, and his partner, parked their unmarked car near 23rd Street and Columbia Avenue in Philadelphia. They observed a group of youths, including the appellant, taunting another gang across the street. The appellant gestured as if to draw a weapon. His group then ran across the street and chased the other group down 23rd Street. Officer Holmes then heard three gun shots. The officers ran toward the scene of the altercation and apprehended the appellant, who was running towards them on 23rd Street. A frisk of the appellant revealed a .22 caliber revolver with three spent cartridges and one live cartridge, and a 14-inch butcher

[ 234 Pa. Super. Page 650]

    knife. The gun and knife were introduced into evidence at the trial.*fn1

Appellant was found guilty of conspiracy (18 Pa.C.S. § 903)*fn2 to commit riot and disorderly conduct (Indictment No. 2126); possession of an instrument of crime (concealed weapon) (18 Pa.C.S. § 907(b)) and possession, etc., of a prohibited offensive weapon (18 Pa.C.S. § 908) (Indictment No. 2127); carrying a firearm on public streets or public property in Philadelphia (18 Pa.C.S. § 6108) and carrying a firearm concealed on his person without a license (18 Pa.C.S. § 6106), both being violations of the Uniform Firearms Act (Indictment No. 2128); and disorderly conduct (18 Pa.C.S. § 5503(a)(1)) (Indictment No. 2129). Appellant was sentenced to concurrent terms of imprisonment of one to two years (Indictment No. 2126); two and one-half to five years (Indictment No. 2127); and one to two years (Indictment No. 2128). Sentence was suspended on Indictment No. 2129.

It does not appear that the appellant filed any written post-trial motions. Instead, after the close of the evidence, appellant's counsel made a short statement to the court, apparently arguing that the court should disbelieve the officer's testimony that he found the weapons on the appellant's person. The judge then announced his findings of guilt. The appellant's counsel then asked, "Would your Honor permit me to make motions for a new trial and/or arrest of judgment at this time and incorporate my prior argument?" The court apparently allowed the appellant to make such a motion, then immediately denied it.*fn3 This appeal followed.

[ 234 Pa. Super. Page 651]

Appellant first claims that the jury waiver colloquy was deficient, in that appellant was not advised that the verdict of the jury must be unanimous. See Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). Defense counsel advised the appellant that "[y]ou could not be convicted unless the twelve people, all the jurors together, find beyond a reasonable doubt you were guilty." Appellant contends that this language might indicate that only a majority of the jurors would have to agree to the verdict. Although it ...


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