No. 2112 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Chester County at No. 114577.
Lawrence Sager, Pottstown, for appellant.
Donald A. Mancini, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Wickersham, Hoffman and Van der Voort, JJ. Hoffman, J., concurs in the result.
[ 298 Pa. Super. Page 362]
This is an appeal from a judgment of sentence entered on September 19, 1979. Appellant Mokluk and his co-defendant Kenneth Buckwalter were tried before a jury on December 6, 1977. Mokluk was found guilty of two counts of criminal conspiracy. Post-verdict motions were filed and were denied by the lower court on June 18, 1979. On September 19, 1979 Mokluk was sentenced to pay a fine of $250 and was placed on probation for five years. Mokluk filed his notice of appeal to the Superior Court on October 12, 1979.
The relevant facts in the instant case are as follows. On November 11, 1976 Maxwell's Quarters, a historic building located near Valley Forge National Park was burglarized. Numerous antiques and Revolutionary War items were taken. Police investigation of the incident focused on Norman Schulze. Schulze admitted taking part in the burglary and also implicated his brother Scott Schulze, Kenneth Buckwalter, and appellant Mokluk.
Mokluk was arrested and charged with burglary, theft by unlawful taking or disposition, receiving stolen property, criminal mischief, and criminal conspiracy. His trial, held jointly with that of Kenneth Buckwalter, commenced on
[ 298 Pa. Super. Page 363]
December 6, 1977 after his accomplices Norman Schulze and Scott Schulze had entered guilty pleas pursuant to plea bargains they had negotiated with the Commonwealth. As condition of his plea bargain, Scott Schulze testified as to appellant Mokluk's role in the burglary of Maxwell's Quarters.
At the beginning of appellant Mokluk's trial the lower court judge ordered the sequestration of all witnesses except the prosecuting police officer. During the testimony of Scott Schulze, his attorney, Dean Gascho, was present in the courtroom. Appellant Mokluk's counsel attempted to impeach Scott Schulze's testimony by suggesting, on cross-examination, that it had been motivated by Schulze's desire to obtain a favorable plea bargain for himself. The Commonwealth then called Mr. Gascho to the stand where he testified that Scott Schulze had previously made statements to him which were substantially similar to those Schulze had given in his testimony in the instant case.
Appellant Mokluk's counsel raises two contentions on this appeal, the first of which he phrases as
Did the Lower Court err in refusing to grant a new trial when Dean Gascho was allowed to testify in violation of ...