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COMMONWEALTH PENNSYLVANIA v. JAMES L. ELMORE (06/28/76)

decided: June 28, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES L. ELMORE, APPELLANT



Appeal from Judgment of Sentence Entered by the Court of Common Pleas of Bucks County, Criminal Division, on April 11, 1975 at Indictment No. 1514 of 1974. No. 1301 October Term, 1975.

COUNSEL

Eugene A. Kestenbaum, Asst. Public Defender, Doylestown, for appellant.

Stephen B. Harris, First Asst. Dist. Atty., P. Schenck, Doylestown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion in which Watkins, President Judge, and Van der Voort, J., join.

Author: Hoffman

[ 241 Pa. Super. Page 471]

Appellant contends that the trial court erred in conducting vigorous direct examination of one of the Commonwealth's witnesses which led to the introduction of prejudicial testimony.

On August 23, 1974, the Bucks County Grand Jury returned indictment number 1514 charging appellant with a March 4, 1974 burglary. After the court denied appellant's motion to suppress, a jury was selected on November 7, 1974. On November 11, 1974, the jury found appellant guilty as charged. Post-trial motions were denied on February 11, 1975. On April 11, 1975, appellant

[ 241 Pa. Super. Page 472]

    was sentenced to a term of imprisonment of three to twenty-three months.

At trial, the following facts were developed. One witness, who was unable to make an identification at any point during the proceedings, testified that she returned home on March 4, 1974, and discovered that her apartment was being burglarized. She left her apartment and told Mrs. Keyes, a neighbor who was in the hallway of the apartment building, that "I'm being robbed." Mrs. Keyes saw two men running from the rear of the building; she gave chase, during which time she viewed the suspects. The only other Commonwealth witness was the arresting officer, who testified that the police dusted for fingerprints but found only smudges, indicating that the burglars wore gloves. The only testimony elicited by the prosecutor from the officer on the subject of the witness's identification was the following: "Q. Detective, did you also interview the witness?

"A. Yes, I did.

"Q. What information did she give you?

"A. Mrs. Keyes was there and both me and Haldman were there at the interview.

"She gave a description of two men she chased out of the parking lot.

"Q. Did the description that she gave fit anybody that is in this courtroom?

"A. Yes, one did.

"Q. Who is that?

"A. Subject number one fits the defendant.

"Q. Based upon your investigation, did you arrest anyone in the courtroom as a result?

"A. Yes.

"Q. Who was that?

"A. [Appellant]."

[ 241 Pa. Super. Page 473]

After appellant's counsel had cross-examined the police officer, the court conducted the following examination of the witness:

"THE COURT: Is there anything else?

"[THE ASSISTANT DISTRICT ATTORNEY]: No, Your Honor.

"THE COURT: Excuse me. There is something missing here, it seems to me.

"Detective, during some part of your investigation you came and you arrested this man on a certain date, is that correct?

"THE WITNESS: Yes.

"THE COURT: As a result of certain information?

"THE WITNESS: Yes.

"THE COURT: You said Mrs. Keyes identified the person.

"Did she have anything to do with the fact of your ...


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