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COMMONWEALTH PENNSYLVANIA v. GARY POVISH (06/02/78)

decided: June 2, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY POVISH, APPELLANT



No. 32 January Term, 1977, Appeal from the Judgment of Sentence imposed on November 25, 1974, in the Court of Common Pleas of Lycoming County, Pennsylvania, Criminal Division # 74-10,05 and from the Order of the Superior Court of Pennsylvania of October 9, 1975 at No. 532 Oct. Term, 1975 affirming the Judgment of Sentence.

COUNSEL

George E. Lepley, Jr., Asst. Public Defender, for appellant.

Allen E. Ertel, Dist. Atty., Robert F. Banks, First Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.

Author: Roberts

[ 479 Pa. Page 183]

OPINION OF THE COURT

Appellant was charged with robbing an employee of the Dairy-Lea store in Williamsport on December 3, 1973, and again on December 12, 1973.*fn1 On February 15, 1974, appellant filed a motion to suppress clothing seized pursuant to an invalid search warrant. A hearing was held on this motion on March 4, 1974. At this hearing, appellant sought to file a second or supplemental written suppression motion alleging that certain pre-trial identifications were unconstitutionally obtained.*fn2 The court granted appellant's motion to suppress clothing but denied, without a hearing, the request to amend the original suppression motion or to file a new motion to suppress the identification. Appellant filed, on April 18, 1974, a written motion for reconsideration of the court's denial of the second motion to suppress. The court denied this motion on June 10, 1974. On June 19, 1974, a jury found appellant guilty on both counts of robbery. The court denied post-verdict motions and sentenced appellant to a term of imprisonment of not less than eight months nor more than three years. The Superior Court affirmed the judgment of sentence without opinion. We granted allocatur and now vacate the judgment of sentence and remand with instructions.*fn3

Appellant first contends the trial court erred in denying his request for a mistrial when the prosecutor, over objection, questioned appellant as to his ownership of the items of clothing ordered suppressed. The question resulted in admissions

[ 479 Pa. Page 184]

    by appellant that he owned the clothing items on the relevant date. Appellant claims this questioning was improper as the "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). We do not agree.

The court suppressed a brown corduroy jacket, a brown suede jacket, a brown leather jacket, a red turtleneck sweater, a white shirt with blue stripes and flowers and a pair of blue jeans. During the Commonwealth's case-in-chief, the victim of the two robberies described the clothing worn by the robber, including a blue and white striped shirt with flowers on it, blue jeans and a rusty colored corduroy coat. During cross-examination of the witness, appellant introduced into evidence a copy of the police report made shortly after the two robberies, which contained a description of certain articles of the suspect's clothing as reported by witnesses. Appellant took the stand and denied his involvement. Subsequently, the Commonwealth sought to recall appellant for additional cross-examination to ascertain whether, in December, 1973, he owned certain items of clothing matching the witnesses' description. Appellant objected on the ground that these questions would violate the order suppressing clothing. Following discussion out of the hearing of the jury, the court determined the Commonwealth could question appellant as to his ownership of the clothing, limiting the questions to the descriptions contained in the police reports completed prior to the illegal search.*fn4

[ 479 Pa. Page 185]

Over appellant's objection, the prosecutor then asked appellant whether on December 3, 1973, he had owned "a

[ 479 Pa. Page 186]

    brown jacket with one pocket on the right side," to which appellant responded, "I own three brown jackets. Which one do you mean?" The prosecutor replied, "The one with the pocket on the right side." Appellant answered:

"They all have pockets. Let me explain that. I have a corduroy coat and they [sic] have pockets on the right side. I have a leather coat which have [sic] pockets on the right side. I have a half cut jacket like this leather coat with ...


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