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COMMONWEALTH PENNSYLVANIA v. GEORGE BRITTON (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE BRITTON, APPELLANT



No. 2005 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as Imposed on Bill of Indictment Nos. 25, 26 and 28 September Sessions, 1975.

COUNSEL

John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, 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.

Author: Jacobs

[ 251 Pa. Super. Page 338]

This is an appeal from the judgment of sentence entered against Appellant George Britton in the Court of Common Pleas of Philadelphia County. Appellant was convicted by a jury on November 25, 1975, on charges of possessing an instrument of a crime -- generally, criminal conspiracy, robbery, and aggravated assault. Appellant's post trial motions were denied.

Appellant cites numerous bases for this appeal. He alleges that the trial court erred in (a) limiting appellant's cross-examination of the alleged victim thereby denying appellant his constitutional right of confrontation; (b) limiting appellant's own direct testimony through which he attempted to establish misidentification as a defense; (c) striking from the record and prohibiting further testimony concerning physical coercion of appellant that would bear on the jury's determination of the voluntariness of appellant's

[ 251 Pa. Super. Page 339]

    statement to the police; (d) admitting Commonwealth Exhibit C-3, a knife, into evidence when there was no positive identification of the weapon and a gap in the chain of custody; (e) denying appellant's motion to suppress evidence and statements; and (f) refusing to grant a continuance in order to allow appellant to obtain the notes of testimony of the suppression hearing for use in cross-examination at trial.

We agree with appellant that the trial court abused its discretion and violated his constitutional right of confrontation in restricting his examination and cross-examination of certain witnesses. Accordingly, we reverse and remand for a new trial.

On August 7, 1975, Clarence Lane was stabbed and robbed by two men on a Philadelphia street. Shortly after the incident, appellant was apprehended by the police a short distance from where the stabbing occurred. The other alleged assailant, one Davenport, has never been apprehended. The jury found that appellant, when apprehended, was carrying a nine-inch folding knife covered with a sticky red substance and a wallet containing identification cards belonging to Clarence Lane.

At the preliminary hearing, suppression hearing, and trial, Lane was questioned extensively as to the identification of Appellant Britton. Not all of his statements were consistent. For example, at the hearing, Lane testified that he knew appellant from his neighborhood and that before the stabbing incident he had seen appellant "every day, just about. I see him on the corner." (N.T. P.H. 9.)*fn* At the hearing on appellant's suppression motion and at trial, Lane, on direct examination, stated that he had seen appellant "many, many times," "since he was a kid," "more than a few hundred times." (N.T. S.H. 13-14, N.T. 42.) At trial, Lane testified ...


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