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COMMONWEALTH PENNSYLVANIA v. THOMAS BORRIS (03/31/77)

decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS BORRIS, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas of Fayette County, Criminal Division, at Criminal Actions Nos. 456 and 456 1/2 of 1975. No. 548 April Term, 1976.

COUNSEL

Donald J. McCue, Connellsville, submitted a brief for appellant.

Conrad B. Capuzzi, District Attorney, Uniontown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.

Author: Hoffman

[ 247 Pa. Super. Page 261]

Appellant raises several allegations of error. We conclude that none has merit and, therefore, we affirm the judgment of sentence.

[ 247 Pa. Super. Page 262]

On May 27, 1975, Pennsylvania State Trooper Nickel swore out a criminal complaint in which appellant was charged with the October 22, 1973 burglary of the Sons of Italy Club in Connellsville, Fayette County.*fn1 Appellant was also charged with conspiring with Joseph and Dominic Mancuso and Marvin Wedge to commit the burglary. Marvin Wedge co-operated with the authorities and appeared as a Commonwealth's witness against his co-conspirators. The Mancusos, also charged with burglary and conspiracy, were tried along with appellant. Trial commenced on December 8, 1975. On December 17, the jury found all defendants guilty as charged. After denial of post-trial motions, the lower court sentenced appellant to make restitution and to serve concurrent terms of five to ten years' imprisonment. This appeal followed.

Initially, appellant contends that the lower court erred in granting the Commonwealth's motion for an extension of time in which to bring appellant to trial, see Rule 1100(c), Pa.R.Crim.P., 19 P.S. Appendix, and that the court erred in denying appellant's motion for a change of venue. Appellants co-defendants, Dominic and Joseph Mancuso, raised those issues at Nos. 544 and 545 April Term 1976. The relevant facts are identical. Therefore, we rely on our discussion in Commonwealth v. Mancuso, 247 Pa. Super. 245, 372 A.2d 444 (filed March 31, 1977), in rejecting appellant's first two allegations of error.

In addition, appellant contends that the lower court committed reversible error "when it refused to exclude the testimony of Lucinda Borris, ex-wife of [appellant] after it became apparent from the Commonwealth's offer of proof, that [her] testimony . . . was to be testimony between her and her husband, . . ., at a time when they were married and that the testimony fell within the doctrine of privileged communications."

[ 247 Pa. Super. Page 263]

The district attorney made the following offer of proof at sidebar:

"Q. You are Lucinda Borris?

"A. Yes, I am.

"Q. And you were married to Tom Borris, one of the defendants in this ...


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