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COMMONWEALTH PENNSYLVANIA v. VINCENT L. PERRY (10/12/79)

filed: October 12, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
VINCENT L. PERRY, ALFRED J. SCATTOLINI AND ROBERT A. CAL, APPELLANTS



Nos. 2004, 2005, 2006 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Delaware County, Nos. 6161, 6162, 6163 of 1977, Criminal.

COUNSEL

Carmen P. Belefonte, Media, for appellants.

Guy A. Messick, Assistant District Attorney, Media, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ. Spaeth, J., concurs in the result.

Author: Price

[ 270 Pa. Super. Page 413]

The instant appeal is from an order of the trial court denying appellants' Motions to Dismiss based upon the claim that reprosecution was barred on the basis of double jeopardy. We affirm the denial.

[ 270 Pa. Super. Page 414]

On November 6, 1977, police conducted a warranted search of appellant-Cal's apartment in Boothwyn, Delaware County. As a result of the seizure of various items of contraband, appellants were charged with pool selling, bookmaking and conspiracy. Appellants subsequently filed a petition to suppress the evidence seized in the search. A hearing was held on February 10, 1978, at which Assistant District Attorney Joseph Dougherty represented the Commonwealth. At the hearing, it was determined that all of the appellants had been given improper Miranda warnings, although the prosecution only presented evidence as to statements made by Robert Cal; no testimony was elicited imputing any statements to the other appellants. Testimony was also presented to establish that four firearms had been seized and that a set of keys to the apartment had been found in the possession of Alfred Scattolini. Subsequent to the hearing, the court entered an order suppressing the four firearms and the statements of Robert Cal. The set of keys to the apartment was ruled admissible.

On February 22, 1978, appellants were brought to trial before a jury. At trial, the Commonwealth's case was presented by a different Assistant District Attorney, Michael Duncan. During the course of the trial four incidents occurred, the cumulative effect of which prompted the court to grant appellants' motions for mistrial.

The first incident occurred when the assistant district attorney inquired of a police witness whether any guns had been seized during the search of the apartment. Because the guns had been ruled inadmissible, the objection to the question was sustained and the jury instructed to disregard any questions regarding guns. Appellants' mistrial motions were denied.

The second incident occurred when the Commonwealth attorney was questioning a police witness regarding an item that had been found on the person of appellant Scattolini. The witness responded that $750 had been found during a search of Scattolini. Because this had not been listed on the inventory of items seized and had not been revealed during

[ 270 Pa. Super. Page 415]

    the suppression hearing, the court sustained an objection and ordered the jury to disregard the testimony. Mistrial motions were again made for all defendants but denied. At side bar, the assistant district attorney pleaded surprise, stated that he had told the policeman not to mention the $750, and explained that he had posed his question with ...


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