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COMMONWEALTH PENNSYLVANIA v. PHIL SMITH AFRICA (AT NO. 1432) (10/10/80)

filed: October 10, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
PHIL SMITH AFRICA (AT NO. 1432), APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. JANET HOLLOWAY AFRICA (AT NO. 1499), APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. GAIL SIMS AFRICA (AT NO. 1410), APPELLANT



No. 1432 October Term, 1979, No. 1499 October Term, 1979, No. 1410 October Term, 1979, Appeals from the Orders in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 691 to 697, May Term, 1978, Nos. 717 to 723 May Term, 1978, and Nos. 724 to 730 May Term, 1978.

COUNSEL

Bruce A. Franzel, Philadelphia, for Phil Smith Africa, appellant.

Joel W. Todd, Philadelphia, for Janet Holloway Africa, appellant.

Fred M. Feder, Philadelphia, for Gail Sims Africa, appellant.

Andrew B. Cohn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Hoffman and Watkins, JJ. Hoffman, J., files a concurring and dissenting opinion.

Author: Price

[ 281 Pa. Super. Page 421]

Appellants appeal from orders of the court of common pleas denying their motions to dismiss the indictments filed against them. They contend that prosecution on the indictments

[ 281 Pa. Super. Page 422]

    is barred on the basis of double jeopardy and that the trial court erred in refusing to sustain their motions. We disagree.

On May 20, 1977, appellants and five other co-defendants*fn1 who were either sympathizers or members of an organization known as MOVE were involved in a confrontation with police at the group's Philadelphia headquarters. As a consequence, they were charged in various combinations with the following offenses: criminal conspiracy,*fn2 riot,*fn3 possessing instruments of crime (generally),*fn4 possessing instruments of crime (concealed),*fn5 possessing prohibited offensive weapons,*fn6 reckless endangerment,*fn7 terroristic threats,*fn8 failure to disperse,*fn9 and disorderly conduct.*fn10 During the incident on May 20, 1977, a total of thirty-seven photographs were taken of the MOVE headquarters depicting appellants in various activities. These photographs were provided to appellants pursuant to a pretrial motion, and the assistant district attorney assured appellants that any testimony by police identifying them as having been present at the scene of the crime would come solely from direct observation

[ 281 Pa. Super. Page 423]

    on May 20, 1977, and the prior contacts of the police with appellants. Although it is unclear whether an express disclaimer was made that the police would not be shown the photographs taken on May 20, this was the implication conveyed during pretrial proceedings.

On December 18, 1978, a non-jury trial commenced. At trial, two of the defendants were represented by counsel while all of the other defendants, including appellants, proceeded pro se. On December 19, 1978, Officer Julius Armstrong of the Philadelphia Police Department was called to testify as to events that he witnessed on May 20, 1977. During his testimony, Officer Armstrong identified six of the defendants as having been present at MOVE headquarters on that date. He did not, however, identify appellants Phil Smith Africa and Gail Sims Africa. He further asserted that his identifications were based upon observations of the six defendants during prior incidents when MOVE had engaged in various picketing activities in Philadelphia.

The next day, December 20, 1978, Officer Armstrong again testified and was cross-examined by attorney A. Benjamin Johnson, counsel for co-defendant Consuella Dotson. During cross-examination, the officer testified that he had been shown twenty to thirty photographs taken on May 20, 1977, which depicted all eight of the defendants engaged in various activities at MOVE headquarters. Immediately, attorney Johnson moved for a mistrial or dismissal of the charges on the basis that the defendants had been led to believe that Officer Armstrong had not been shown any photographs, and, thus to their prejudice, the defendants had not sought to suppress the identification testimony of the officer. Following this motion, the record becomes confused with various defendants making motions for mistrial or dismissal, some making motions strictly for dismissal but not for a mistrial, and some engaging in speeches ...


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