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COMMONWEALTH PENNSYLVANIA v. HOWARD KEMP (09/21/79)

filed: September 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
HOWARD KEMP, APPELLANT



No. 131 Special Transfer Docket Appeal from the Judgments of sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 1172, 1173, 1174 and 1175 January Sessions, 1976

COUNSEL

Michael F. Eichert, Philadelphia, for appellant.

Suzanne McDonough, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: O'brien

[ 270 Pa. Super. Page 9]

Appellant, Howard Kemp, was convicted by a jury of murder of the third degree, criminal conspiracy, aggravated assault and weapons offenses. Post-verdict motions were denied and appellant was sentenced to a term of imprisonment of ten to twenty years for the murder conviction with concurrent lesser terms of imprisonment on the remaining charges. This appeal followed.

The instant case arose out of two December 9, 1975 incidents, closely related in time and proximity, in which Harold Berry and Jerome Thomas were stabbed. Thomas survived his wounds, but Berry died shortly after the stabbing. Officer Martin Dietz was the first policeman to arrive at the scene of the Berry stabbing, where he obtained from bystanders a description of the assailants. Appellant and two others were arrested several blocks away, returned to the scene, and were identified by two witnesses as having participated in the murder. Appellant subsequently made an incriminating statement.

Appellant now urges upon us ten assignments of error. We find one of those assignments to be meritorious and because of our disposition of the case it is unnecessary to consider or discuss the remaining nine.

Appellant alleges the prosecution elicited an impermissible reference to the results of a polygraph test administered to a Commonwealth witness. The reference complained of occurred at trial in two separate instances. The first of those instances involved the direct examination of a prosecution witness, Craig Mitchell. Mitchell had been present with appellant and his confederates on the night of the killing, and had driven them to the scene of the crime. The following testimony was elicited from Mitchell by the district attorney:

"Q. (By Miss Christie) After you gave that statement to the police, did you undergo any further investigation?

"A. (By Mitchell) I had to take a lie detector test.

[ 270 Pa. Super. Page 10]

"Q. Just further investigation, without telling ...


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