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COMMONWEALTH PENNSYLVANIA v. KENNETH GEPHART LIPSCOMB (09/06/79)

filed: September 6, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH GEPHART LIPSCOMB, APPELLANT



No. 275 April Term, 1978, Appeal from Sentence in the Court of Common Pleas of Greene County, Pennsylvania, at 48A, Criminal Sessions, 1977 and 49B, Criminal Sessions, 1977, Criminal Division

COUNSEL

Kenneth O. Tompkins, II, Waynesburg, for appellant.

W. Bertram Waychoff, District Attorney, Waynesburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement in which Price, J., joins. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 269 Pa. Super. Page 220]

The instant appeal arises from appellant's conviction, following a trial by jury, of two counts of burglary for which appellant received consecutive sentences of two to six years in prison. The sole issue raised for our consideration is whether there was sufficient evidence that appellant's accomplice in the burglaries, Douglas Ray Smith, committed perjury during appellant's trial when Smith denied having received a promise of leniency in return for testifying against appellant. The relevant facts are as follows:

[ 269 Pa. Super. Page 221]

At appellant's trial Smith was the Commonwealth's leading witness; not only had he been appellant's accomplice, but he was the only known eyewitness to the burglaries. Thus, his credibility was crucial to the case. The initial premise for appellant's allegation that Smith lied during the trial concerning his bargain with the District Attorney is the following passage from Smith's testimony during direct examination by the District Attorney:

"Q. Now, in cross examination [of the investigating officer] a while ago it appeared there might have been a promise of leniency in your prosecution with me. To refresh your memory wasn't that more of immunity for testimony you would give as to prosecuting you in other matters?

"A. I don't quite understand what you mean.

"Q. The immunity had to do with not charging you with additional crimes about which you were giving testimony?

"A. I did ask for that. You said you would give ...


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