No. 233 March Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal Division, at Nos. 1777 and 1777(a) C.D. 1978
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
Marion E. MacIntyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, P. J., Watkins and Montgomery, JJ.
[ 285 Pa. Super. Page 114]
The Appellant, Bronson Jones, files this direct appeal to our Court following his conviction, after a jury trial, on charges of robbery and aggravated assault. The charges arose out of a robbery which occurred on September 12,
[ 285 Pa. Super. Page 1151978]
, at a gas station in the City of Harrisburg. During that incident, the sole robber threatened two employees with a hand gun and then shot the manager of the station four times. The Appellant was taken into custody on the same date, and was tried on the charges in early February, 1979. He was represented during pretrial, at trial, and on post-trial motions by privately retained defense counsel. On this appeal, he is represented by the office of the Public Defender of Dauphin County, which was permitted by the lower court to file a supplemental post-trial motion nunc pro tunc concerning a suppression issue. The instant appeal was filed following the denial of all post-trial motions and sentencing. The Appellant raises three claims of error on this appeal.
The Appellant's first two claims are closely related. He first contends that the lower court erred in not granting a new trial when it was discovered that the Commonwealth had not delivered certain evidence to the defense prior to the trial. The evidence in issue was the result of a scientific test performed by the Commonwealth after the arrest. Secondly, the Appellant argues that the lower court committed error in refusing to allow defense counsel to comment on the result of the test in his closing address to the jury.
The record shows that the Appellant was arrested at approximately 10:00 p.m. on September 12, 1978, and charged with the robbery which had occurred during the early afternoon of the same day. Coincidental with other arrest procedures, he was apparently given a neutron activation analysis test, which has as its purpose the detection of the presence of chemical residue on the hands of an individual which would indicate that the individual had fired a gun. The results of the test were negative, and the apparent conclusion was that the chemical presence was insufficient to establish that appellant had fired a gun.
The existence of the neutron activation analysis was not revealed to the defense prior to the trial. The prosecuting attorney asserted that he was not aware of the occurrence of the test until a police officer, who was a Commonwealth witness, testified on cross-examination that the test had
[ 285 Pa. Super. Page 116]
been performed. The witness was not asked the result of the test. At the conclusion of the testimony of the officer, the defense filed motions for a ...