No. 915 October Term 1977, Appeal from the Probation Order of the Court of Common Pleas, Criminal Division, of Lycoming County, Pa. at No. 74-10,977.
Leon H. Kline, Philadelphia, for appellant.
William S. Kieser, District Attorney, Williamsport, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Jacobs, President Judge, dissents and would grant a new trial on all charges. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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This is an appeal from judgments of sentence entered on jury verdicts of guilty on five counts.*fn1 The counts arose from three incidents, which we shall discuss separately.
On these counts appellant was convicted of hindering apprehension or prosecution, The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. 5105(a)(5), and theft by deception, id., 18 Pa.C.S.A. § 3922(a)(3).
Appellant was an officer of the Williamsport Police Department; in August, 1973, he was captain of uniformed patrol; in February, 1974, he was inspector; in April, 1974, he became acting chief of police; and in May, 1974, he became chief of police.
On August 30 or 31, 1973, appellant asked Sergeant Charles Croft to give him a key to a room in which equipment of the Narcotics Unit was stored; the room was under tight security, and Croft had one of only three keys to it. As his reason for needing the key, appellant told Croft he wanted to leave an important message in the room. Croft gave appellant the key. Appellant entered the room and removed a surveillance kit,*fn2 which he took home.
On the evening of September 4, while appellant still had the kit, two State Police officers interviewed appellant at his home. Their purpose was evidently to inquire about illegal wiretapping at City Hall. (Shortly after the officers interviewed appellant, the Mayor of Williamsport, John R. Coder, was charged with illegal wiretapping and other criminal offenses.) In any case, the officers were not looking for the surveillance kit and did not know it was missing. Appellant
[ 257 Pa. Super. Page 211]
told the officers that he knew of no illegal wiretapping, and knew of no surveillance devices except for a kit used by the Narcotics Unit, which, he said, was in the custody of James Rechel, custodian of police equipment.
The next day appellant returned the kit. Later that day, when questioned by the Chief of Police, he acknowledged having had the kit.
At the trial, the Commonwealth, over appellant's objection, introduced the testimony of an assistant district attorney, who said that he had attended an indicting grand jury before which appellant testified,*fn3 that he had taken notes of the proceedings, and that appellant had testified at that time that while he had had the surveillance kit, he had used it in agreement with Mayor Coder's attorney, one ...