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COMMONWEALTH PENNSYLVANIA v. BYRON JOHNSON A/K/A BYRON JONES (12/29/78)

decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
BYRON JOHNSON A/K/A BYRON JONES, APPELLANT



No. 1423 October Term, 1977, Appeal from the Judgment of Sentence imposed by the Court of Common Pleas of Philadelphia County, Criminal-Trial Division at Nos. 1159-1161 August Term, 1976.

COUNSEL

Oscar N. Gaskins, Philadelphia, for appellant.

Michael R. Stiles, Assistant District Attorney, Philadelphia, for Com., appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone and Spaeth, JJ., concur in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 262 Pa. Super. Page 225]

Following a jury trial commenced on December 8, 1976, appellant was convicted of criminal conspiracy,*fn1 robbery,*fn2 and aggravated assault.*fn3 Subsequent to a denial of post-verdict motions, appellant was sentenced to a prison term of from one to ten years for robbery, and to concurrent one to five year terms for aggravated assault and criminal conspiracy. Appellant now contends that a new trial is necessitated by two lower court errors: (1) failing to grant a mistrial after the prosecutor had cross-examined appellant concerning a juvenile arrest for which no substantiation was produced; and (2) allowing the complaining witness to resume the witness stand as of rebuttal for purposes of clarifying his

[ 262 Pa. Super. Page 226]

    prior testimony. Finding no merit in these arguments, we affirm.

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973), the following facts were adduced at trial. On July 14, 1976, Michael Johnson gave a revolver to Roger Jones (Roger), a member of a neighborhood gang that perpetrated small thefts in the area. Subsequently, having failed to receive his share of the proceeds from the sale of a recently stolen citizens band radio, Roger sold the gun on July 18, 1976, in an attempt to gain compensation.

Three days later, on July 21, Roger was told by Craig Jones and Barry Adams that appellant's mother wished to see him at her home. Later that same day, Roger visited the premises accompanied by Craig Jones. Upon entering the home, the latter procured a rifle and pointed it at Roger. They were soon joined by Michael Johnson, who pointed another gun at Roger, and both then forced him into the basement. In the interim, Barry Adams brought Charles Jones, Roger's cousin, to the house and he was similarly forced at gunpoint into the basement. Both Roger and his cousin were severely beaten while being questioned about the gun Michael Johnson had given Roger. Upon appellant's arrival some one-half hour later, he interrogated both of the captives about the gun, and after receiving unsatisfactory answers, proceeded to beat Roger about the head and body with the butt of a shotgun. He was aided in this assault by Barry Adams and Craig Jones. Finally, Roger revealed that the gun was at a girl's home and he was forced to telephone her. Following the girl's arrival, appellant threatened Roger with death if he should inform the police of the incident. Prior to his release, thirty-three dollars was taken from him. The entire episode lasted from two to three hours. After phoning the police, Roger was taken to St. Agnes Hospital for two weeks of care. Appellant was subsequently arrested on information provided by Roger.

[ 262 Pa. Super. Page 227]

Appellant's first contention concerns questions propounded on cross-examination by the assistant district attorney which implied that appellant had previously been arrested. The circumstances are these. On direct examination by his attorney, appellant testified that he had never been arrested, either as an adult or otherwise. Immediately thereafter, the following exchange took place on cross-examination:

"Q. [ASSISTANT DISTRICT ATTORNEY] Your attorney asked you whether you were arrested as a juvenile or otherwise?

A. [APPELLANT] Right.

Q. Do you remember that question?

A. Right.

Q. And I believe your answer was 'no'?

A. Right.

Q. Do you want to think about that answer?

A. Right. I never been arrested before in my ...


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