No. 924 October Term, 1978, Appeal from the Judgment of Sentence of January 18, 1978, Court of Common Pleas of Montgomery County, Criminal Division, at No. 825-77.
Gerald Jay Pomerantz, Philadelphia, for appellant.
Eric J. Cox, Assistant District Attorney, Chief, Appeals Division, Norristown, for Commonwealth, appellee.
Price, Hester and Hoffman, JJ. Price, J., dissents.
Appellant was convicted of criminal attempt, criminal conspiracy and terroristic threats. Post verdict motions were denied and a jail sentence of 2 1/2 to 7 years was imposed.
The facts underlying this conviction are as follows:
On February 13, 1977, the home of Mr. and Mrs. Ralph Spagnolia was burglarized. On February 17, Mrs. Spagnolia received a telephone call from an unidentified person asserting that he had certain information concerning the burglary and unless she produced $10,000, harm would come to her. Immediately thereafter, Mrs. Spagnolia notified the Abington police of the details of the conversation. The police urged her to continue to receive information from the caller and to comply with his wishes; the police would arrange a stakeout of her home and furnish the requested money.
On February 23, 1977, the caller arranged for a rendezvous. Mrs. Spagnolia would proceed to the Howard Johnson's restaurant in Glenside and await further instructions from a public telephone.
While this was in progress, an officer on stakeout duty observed a blue and white Cadillac follow Mrs. Spagnolia as she drove from her house. The officer followed the Cadillac to Howard Johnson's, where it stopped approximately 300 yeards from the restaurant. At this point, the officer copied the number on the license plate.
Via public phone, Mrs. Spagnolia was instructed, by the same individual who had previously conversed with her, to proceed to Littleton's Diner. This she did and again the blue and white Cadillac was observed following her.
From the Diner, Mrs. Spagnolia was instructed to proceed to a "54.9" sign on Cheltenham Avenue. The Cadillac again followed as Mrs. Spagnolia drove to this area. When she arrived at the sign and got out of the car an individual later identified as George Smith, called to her from an overpass above Cheltenham Avenue. He then lowered a rope with a hook on the end whereupon she placed the bag with the money in it on the hook. The man on the overpass then fled. The Cadillac was stopped by the police and the appellant, the operator of the car, was placed under arrest. The car was owned by appellant's girlfriend, Josephine Mazer.
A short time later, Ms. Mazer was observed talking to George Smith in a restaurant in Abington Township. The police then arranged a photographic display and Mrs. Spagnolia identified Smith from the display as the man on the overpass, whereupon he was arrested.
Appellant's allegation of error concerns the following testimony elicited from Mrs. Spagnolia by the District Attorney:
BY MRS. HAGARTY: (The Prosecutor)
Q Did you know Mr. Poli (the appellant) at that time?
Q Did you know of him, Mrs. Spagnolia?
MR. POMERANTZ: I would object to this line of questioning, Your Honor. Without a proper foundation being laid.
THE COURT: Well, I don't know what foundation there could be for whether or not she knew the defendant.
MR. POMERANTZ: She said she didn't know him and then there was some additional ...