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COMMONWEALTH PENNSYLVANIA v. PATRICK D. LECUYER (09/04/81)

filed: September 4, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
PATRICK D. LECUYER, APPELLANT



No. 408 PITTSBURGH, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Westmoreland County, at Nos. 610 and 611 April Term, 1976.

COUNSEL

William J. Wiker, Greensburg, for appellant.

Timothy J. Geary, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

Hester, Brosky and Van der Voort, JJ.

Author: Van Der Voort

[ 290 Pa. Super. Page 520]

A jury convicted appellant of Burglary, Theft and Receiving Stolen Property. After refusal of post-trial motions, he was sentenced on April 15, 1980 to four to ten years imprisonment on the burglary charge only, and on the charge of receiving stolen property was placed on probation for five years. He has appealed from both sentences.

His first contention is that his trial was prejudiced because on the first morning, after the jury was impaneled, and during a recess, one of the jurors walked past a small room in the courthouse, commonly called the "Bull Pen", and saw the appellant within the room. Apparently the appellant and other prisoners had been brought to the room preliminary to appearing in court, and the door had been open momentarily to let people through. None were handcuffed; all were in ordinary attire except one who was in prison garb. Three officers, in plain clothes, were in the room. A window at the rear was barred but the bars were hidden from sight by curtains.

Appellant cites Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974) in support of his argument, but that case, as do other precedents, supports the contrary rule of thumb that accidental sightings of a defendant, apparently in custody, do not require the declaration of a mistrial. 456 Pa. at 161, 318 A.2d 680. See also Commonwealth v. Evans, 465 Pa. 12, 15, 348 A.2d 92 (1975); Commonwealth v. Miller,

[ 290 Pa. Super. Page 521247]

Pa. Super. 132, 138, 371 A.2d 1362 (1977) and Commonwealth v. McGonigle, 228 Pa. Super. 345, 352, 323 A.2d 733 (1974), in all of which cases the circumstances of the sightings made the possibility of prejudice more likely than in the present case.

Appellant's second contention is that he was improperly prejudiced by the admission into evidence that he had committed another crime shortly before the crimes for which he was currently being charged.

In the present case, appellant was accused of burglary of and theft from Watson's Chevrolet-Oldsmobile in Export, Westmoreland County, on January 30 or January 31, 1976. Several days after the burglary, an abandoned Chevrolet pick-up truck was observed on a parking lot adjacent to Watson's Chevrolet-Oldsmobile. Appellant was charged in Allegheny County with the theft of that Chevrolet pick-up truck. In the present trial, over objection, the court permitted a police officer to ...


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