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COMMONWEALTH v. OVERTON (12/01/75)

decided: December 1, 1975.

COMMONWEALTH
v.
OVERTON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, Nos. 1622 and 1669, in case of Commonwealth of Pennsylvania v. Douglas Norman Overton.

COUNSEL

Burton A. Rose, and Peruto, Ryan & Vitullo, for appellant.

Francis C. Barbieri, Jr., 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 Jacobs, J.

Author: Jacobs

[ 237 Pa. Super. Page 223]

Appellant was sentenced to two concurrent terms of not less than three years and not more than six and one half years imprisonment following conviction of robbery, aggravated robbery and conspiracy following a non-jury trial before Judge Porter. Motions for a New Trial and In Arrest of Judgment were denied and sentence imposed on April 23, 1975. This appeal followed in which appellant raises a single ground for a new trial which we find to be without merit. We therefore affirm.

The charges out of which this case arises resulted following the armed robbery of Butler's Cleaners, Philadelphia, by two black males at about 4:30 p.m. on February 17, 1973. Leroy Wesley, the Commonwealth's only witness, testified that he, Tenni James (now deceased)

[ 237 Pa. Super. Page 224]

    and appellant developed a plan to rob Butler's Cleaners in which appellant acted as an "inside man." Wesley testified as to the events leading up to and following the robbery, indicating his own participation and that of appellant and Tenni James. The defense presented no testimony.

Prior to the testimony of Leroy Wesley a stipulation was entered concerning the testimony of Gene Pollock, the owner of Butler's Cleaners. Appellant's contention here is that the stipulation entered into by his trial counsel violated his right to confront witnesses because no colloquy appears of record reflecting his consent to the stipulation.

Appellant relies on Commonwealth v. Davis, 457 Pa. 194, 322 A.2d 103 (1974) in support of his argument that the evidence admitted by stipulation was so damaging that it should not have been accepted by the court below without a colloquy surrounded by safeguards similar to those attending the entry of a guilty plea.

The record shows that the stipulation appellant complains of was entered as follows:

"Mr. Hoffman: Your Honor, the first witness would be by stipulation, Mr. Gene Pollock, who would testify that he is the owner of Butler's Cleaners located at 4232 Germantown Avenue, and that on the 17th of February, 1973, he was the owner of Butler's Cleaners, and he reported at 4:30 p.m. his store was held up and robbed at point of gun by two Negro males who took $300.00 in U.S. currency. He would also ...


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