No. 2214 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Luzerne County, Criminal Division No. 1613 of 1977.
Clement E. Kisailus, Wilkes-Barre, for appellant.
Joseph P. Giovannini, Jr., Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Price, Spaeth and Lipez, JJ. Spaeth, J., concurs in the result.
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This appeal arises from appellant's conviction of robbery*fn1 following a jury trial conducted on October 12, 1977.*fn2 Finding no merit in the two arguments advanced by appellant in support of this appeal, we affirm the judgment of sentence.
Viewed in the light most favorable to the Commonwealth as verdict winner, the factual basis of the case is as follows. At approximately 2:56 p. m. on May 31, 1977, Jacob Wasserstrom, the manager of the Sheridan Manor Apartment Houses in Wilkes-Barre, was in the supply room of the complex when he heard someone enter the adjacent office. Investigating, he encountered appellant who inquired about the availability of rooms. Mr. Wasserstrom informed appellant that he would be notified when an apartment became available, and when the former turned to procure an appointment book, appellant pulled a gun and said, "This is a holdup." (N.T. 6). The intruder demanded all the money in the office, but Mr. Wasserstrom insisted that none was available. Appellant then forced the manager to open some of the desk drawers, but finding nothing, ordered Mr. Wasserstrom to lie flat in the storage room, after which appellant departed.
Appellant's first argument is based on the following sequence of events. On direct examination, Mr. Wasserstrom testified that the intruder wielded a gun with a pearl handle and silver barrel. Subsequently, still during the Commonwealth's case-in-chief, the assistant district attorney proposed to call one Diane Nobel. At side bar, the court was informed that Ms. Nobel would testify to her acquaintance with appellant and to her observance of a gun in his apartment some one year prior to the robbery. Appellant's
[ 272 Pa. Super. Page 64]
counsel objected to the testimony as incompetent and overly remote from the crime. The trial court sustained the objection with the remark that, "I think it might be more rebuttal than direct. If there ever were a denial of having any gun ownership, it might be relevant, but I think its remote at this time." (N.T. 43-44).
During the direct examination of appellant by his counsel, no mention was made of a gun. On subsequent cross-examination, however, the assistant district attorney queried if appellant ever owned any gun, and specifically, a revolver with a white handle. No objection was made to the question*fn3 and appellant responded in the negative. The Commonwealth thereafter called Ms. Nobel to the stand on rebuttal, who, over appellant's objection, testified that approximately six months prior to the robbery, she had been in appellant's apartment and had observed a small silver pistol with a white handle laying on a table. She further testified that appellant answered, "No, that's real" when she asked about the gun's authenticity. (N.T. 112).
Appellant now argues that introduction of this information via rebuttal testimony was a case of "prosecutional chicanery." (Brief for Appellant at 7). We might first dispense with that disparaging characterization. The prosecutor was merely conforming his conduct to that earlier suggested by the trial judge, a course certainly not meriting individual condemnation. More importantly, that conduct, whether or not previously suggested, was proper within the context of the trial.
The initial ruling rejecting admission of the evidence in the Commonwealth's case-in-chief was quite correct. In Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974), our ...