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COMMONWEALTH PENNSYLVANIA v. BURNISH K. WARNER (05/09/80)

filed: May 9, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
BURNISH K. WARNER, JR., APPELLANT



No. 371 October Term 1979 Appeal from the Order of the Court of Common Pleas of Lycoming County, Criminal Division, No. 77-10, 121.

COUNSEL

Peter T. Campana, Williamsport, for appellant.

Robert P. Banks, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Lipez, JJ.

Author: Lipez

[ 277 Pa. Super. Page 600]

Appellant was convicted by a jury of robbery, 18 Pa. C.S. ยง 3701. The trial court denied post-verdict motions and imposed a sentence of eight to thirty months imprisonment, a $250 fine, and $2,268.69 restitution. On appeal from that judgment of sentence, three questions were presented, including one of alleged ineffectiveness of trial counsel. Without deciding any issues, this court vacated the judgment of sentence and remanded for a hearing on the ineffectiveness issue. After remand, appellant filed in the court below a motion for a new trial based on alleged after-discovered evidence. The court below held a combined hearing on the issues of ineffectiveness and after-discovered evidence. The court determined that appellant was not entitled

[ 277 Pa. Super. Page 601]

    to a new trial on either ground, and entered an order reinstating the original judgment of sentence. In this appeal from that order, appellant raises both the after-discovered evidence issue and the three issues originally presented, including the ineffectiveness question. We affirm.

Appellant's first contention is that the trial judge erred by failing properly to clarify questions asked by the jury concerning credibility and reasonable doubt, and by refusing appellant's request for further instructions on the issue of identification. After deliberating for some time, the jury returned to the courtroom with the following questions:

"By the Foreman:

Your Honor, we have a few questions on, well, the way they are written, does reasonable doubt and credibility go hand in hand, and please define each, and we were undoubtful [sic], can this case be decided on credibility alone?"

The trial judge then gave detailed supplemental instructions concerning reasonable doubt and credibility. A careful reading of these instructions, covering more than four pages in the transcript, shows that the definitions and applications in both areas were set forth clearly and precisely.

Appellant argues that the trial judge abused his discretion by refusing defense counsel's request for an additional charge that a credible witness can be mistaken in an identification. As the trial judge indicated in refusing this request, this point had been thoroughly covered in the original charge. The jury's original question gave no indication that they were confused on the relationship of credibility to identification, but only on the relationship between credibility and reasonable doubt. Moreover, the trial judge specifically asked the jury if his supplemental charge on credibility and reasonable doubt was sufficient to resolve their problem, and they indicated that it was. The judge asked if there were any other questions, ...


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