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decided: October 6, 1977.


NO. 1706 OCTOBER TERM, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 1293, 1295, 1296 December Term, 1975.


Gerald A. Stein, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

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

Author: Van Der Voort

[ 250 Pa. Super. Page 490]

Appeal is taken to our Court from judgments of sentence rendered following jury verdict of guilty of the indicted charges: robbery, criminal conspiracy, and possession of instrument of crime.*fn1 Standard post-trial motions were filed and augmented by separately-filed "additional reasons". After consideration, the post-trial motions were denied. This appeal followed.

Read favorably to the verdict winner, the facts show that in the early evening of November 26, 1975, one DeWitt Jones and his family were at home in Philadelphia. Admitted to the home were appellant and two co-conspirators, later co-defendants, one of whom was an acquaintance of Jones and vouched for his companions. Appellant proceeded to draw a gun on Jones and demand that he empty his pockets. While one of the co-conspirators held Jones' wife and children at bay, appellant ordered Jones to go with him upstairs, where appellant took three rings, a wrist-watch, a camera, and approximately $400.00 in coin and bills. Thereupon, the intruders placed the family in the cellar the door

[ 250 Pa. Super. Page 491]

    to which was not locked, and departed in their automobile. Jones gave chase in his car. During the chase he happened upon a traffic policeman, to whom he explained the circumstances. The officer joined him. Soon appellant and the co-conspirators, joined by another, a young woman, were snarled in traffic and were prevented from escaping by the officer.

During trial, two instances occurred of a witness' answering with hearsay or unresponsively, at which times appellant moved for a mistrial. The denials of these motions are now challenged as error. In the first place in questioning the victim (Jones), counsel for one of the co-defendants asked him whether he had given a statement to the investigating officer that the defendants had asked him, Jones, for drugs on the night of the occurrence. Following a Commonwealth objection that such matter was outside the scope of direct examination, counsel for appellant also expressed his position that he had a right to inquire into prior statements. With the Commonwealth's objection overruled, the victim answered in the negative and was permitted by the court to explain that it was the detective who told him [Jones] that the defendants' story was that they had come to Jones' place to buy drugs. Both the aforementioned defense counsel moved for mistrial. In the circumstances the denial of a mistrial cannot be called error nor was the answer prejudicial, when the witness was answering and providing explanation of his answer to a defense question. With the benefit of the explanation, the lower court properly advised the jury to disregard the challenged answer as hearsay. However, also with the benefit of the explanation, appellant cannot argue prejudice as to something he sought to elicit. It is proper to allow a witness to explain or clarify his answer. Commonwealth v. McGonigle, 228 Pa. Super. 345, 323 A.2d 733 (1974). It is not error to hold a questioning party to the answer he receives, albeit he does not like to hear the response to his question.

Secondly, appellant refers to his counsel's cross-examination of an investigating detective in this case, asking:

[ 250 Pa. Super. Page 492]

"What if anything did he [the victim, Jones] tell you about drugs?" The answer was: "He told me that he was Artemis Johnson's brother-in-law." The lower court struck the answer. It was explained at side-bar that Johnson was a Philadelphia narcotics officer killed while he was on duty. The court denied appellant's motion for mistrial, agreeing though that the answer was unresponsive. We do not agree with appellant's present contention that the answer was also prejudicial so as to require a new trial. See Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973). Our reasoning is based upon the record showing that the jury received no information as to who Johnson was, or that he was deceased or any details of the ...

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