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COMMONWEALTH PENNSYLVANIA v. RICKEY MCLEAN (07/06/79)

July 6, 1979

COMMONWEALTH OF PENNSYLVANIA
v.
RICKEY MCLEAN, APPELLANT



No. 898 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, Mercer County at No. 260 Criminal, 1977.

Before Price, Hester and Montgomery, JJ.

Per Curiam

Judgment of sentence affirmed on opinion of Judge Acker.

PRICE, J., filed a dissenting opinion.

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA CRIMINAL

COMMONWEALTH vs. RICKIE McLEAN

No. 260 Criminal 1977

APPEARANCES

Samuel J. Orr, IV., District Attorney

David B. Douds, Assistant District Attorney For the Commonwealth

Warren R. Keck, III, Attorney at Law For the Defendant

ACKER, J.

This Court has for consideration a motion for new trial and a motion in arrest of judgment. The defendant was convicted of conspiracy to commit robbery through physically taking or removing property from the person of another by force, however slight.*fn1

This case concerned the robbery of the Western Union office in the Sharon Towne Plza, Sharon, Pennsylvania, on February 16, 1977. Defendant was tried alone upon charges of robbery through infliction of serious bodily injury upon another [18 Pa. C.S.A. 3701(a)(i)]; robbery through inflicting bodily injury upon another [18 Pa. C.S.A. 3701(a)(iv)]; and robbery through physically taking or removing property from another by force, however slight [18 Pa. C.S.A. 3701(a)(v)]. The jury failed to return a verdict of guilty or not guilty on the first two charges.

The testimony of the victim, Vivian Seiple, disclosed that she was working at her desk in the Western Union office on February 16, 1977 around noon. She heard the door open, looked up and saw three men come into the office. One came to her desk while the other two remained behind. The person who approached her desk asked if she had a Western Union message for him and gave a name. In order to determine the answer to his question, Miss Seiple was required to turn in her swivel chair to her "hold file". Finding that she had no Western Union messages, she started to turn back to her desk and to say that she had nothing when she discovered that the first man was already on the top of her desk diving towards her. She screamed. He hit her, knocked her backwards, knocked over the chair and got on top of her five or six feet behind the desk. She screamed again. She remembers seeing his arm start to come up, but that is the last thing she remembered. By the time she regained consciousness, the three had left. Her desk drawer was open. Papers and change were scattered on the floor. A heavy necklace she had had about her neck was broken. All the bills were gone from the top drawer of her desk. Approximately $25.00 was taken.

I IS THE DEFENDANT ENTITLED TO A NEW TRIAL DESPITE THE COURT'S CAUTIONARY INSTRUCTIONS TO THE JURY CONCERNING AN ANSWER GIVEN BY THE WITNESS, ANNETTE SMITH, THAT SHE HAD BEEN THREATENED BY THIRD PARTIES?

The matter first arose on re-direct examination by the Assistant District Attorney of the witness, Annette Smith, when the following exchange took place:

Question: "Have any threats been made upon you by anyone in the penal system or the District Attorney's Office that if you did not testify here today that you might receive a harsher sentence or penalty?" Answer: "I have been threatened. I have got threat notes." Question: "Has anyone from the District Attorney's Office or in the legal system made any threats upon you, that is the police or District Attorney's office?" Answer: "No."

No motion or objection was made at that time, but immediately following the very short re-cross examination defense counsel mentioned the matter at side bar, saying:

"I think the clear implication was that [the threat] was from the defendant and I would like to move ...


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