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COMMONWEALTH PENNSYLVANIA v. KEVIN CARGO A/K/A KEVIN DAVIS (04/23/82)

decided: April 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN CARGO A/K/A KEVIN DAVIS, APPELLANT



No. 452 January Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Nos. 635, 636, October Term, 1977.

COUNSEL

James J. DeMarco, Philadelphia (Court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Sarah Vandenbraak, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., concurred in the result. Kauffman and Wilkinson, JJ., did not participate in the decision of this case.

Author: O'brien

[ 498 Pa. Page 7]

OPINION OF THE COURT

This is a direct appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia. Appellant, Kevin Cargo, was convicted in a non-jury trial of murder of the first degree*fn1 and possession of an instrument of crime,*fn2 and sentenced to life imprisonment and a consecutive sentence of two and one-half to five years. We affirm.

[ 498 Pa. Page 8]

The evidence presented by the Commonwealth established the following.*fn3 At approximately four a. m. on May 8, 1977, appellant was sitting in a taxicab he had stolen the previous evening, waiting for the victim, Gerald Kramer, appellant's former employer, outside Kramer's store at 17th Street and Belfield Avenue in Philadelphia. When Kramer left his store, appellant shot him twice from inside the cab with a twelve-gauge sawed-off shotgun, causing Kramer's death. Appellant left Philadelphia the next day, spending the next several months in North Carolina, Georgia and Virginia. He returned to Philadelphia on September 9, 1977, and was arrested in his mother's home on outstanding warrants for Kramer's murder and the earlier robbery of Kramer's store, as well as for a second, unrelated murder,*fn4 on September 10, 1977. Appellant gave statements to the police confessing to both murders at that time.

Trial counsel filed a timely post-verdict motion, seeking arrest of judgment and a new trial, in which he asserted that the verdict was against the weight of the evidence, that appellant's confession was fabricated by the police and his signature thereon obtained by coercion, and that a prior statement made to the police by a Commonwealth witness was impermissibly read into the record by the detective who recorded the statement. The motion was denied. New counsel entered his appearance at the post-verdict stage and was granted leave to file post-verdict motions nunc pro tunc. No written post-verdict motion was subsequently filed. New counsel did, however, submit a brief, styled as a "Brief

[ 498 Pa. Page 9]

    in Support of Defendant's Post Trial Motions," to the trial judge. This brief was not included in the record certified to this Court.*fn5 The record shows that new counsel requested that the post-verdict court incorporate his brief into the record in lieu of oral argument.*fn6 The post-verdict court did not address this request; it did indicate that it had read the brief, and denied the relief requested therein. N.T. June 13, 1978 at 2-3. Appellant was sentenced on September 15, 1978. This direct appeal followed.*fn7

[ 498 Pa. Page 10]

Appellant argues first that it was prejudicial error for the trial court to admit as substantive evidence the prior written statement of a Commonwealth witness who, at trial, denied any present recollection of the events about which he was asked to testify. The statement established that the witness had seen appellant in a yellow cab on the evening preceding Kramer's murder. Appellant contends that the Commonwealth failed to lay a proper foundation for the admission of that statement. We are convinced that the trial court properly admitted the statement under the past recollection recorded exception to the hearsay rule in light of the foundation laid by the Commonwealth.

The witness, Santos Thornton, a sixteen year old boy, testified initially that he did not remember hearing of Kramer's murder or being interviewed by a police detective on the morning following the murder.*fn8 The Commonwealth pleaded surprise, but later withdrew that plea, attempting instead to lay a foundation for the admission of Thornton's prior statement as past recollection recorded. This Court set forth the requisite elements of such a foundation in Commonwealth v. Cooley, 484 Pa. 14, 21-22, 398 A.2d 637, 641 (1979):

"Before the content of a writing becomes admissible under that exception, the proponent must lay a foundation to show that four requirements are met: '1) the witness must have had firsthand knowledge of the event; 2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it; 3) the witness must lack a present recollection of the event, and 4) the witness must vouch for the accuracy of the written memorandum.' McCormick, Evidence § 299 at p. 712 (2d Ed. 1972). See Miller v. Exeter Borough, 366 Pa. 336, 342, 77 A.2d 395, 399 (1951); Christian Moerlein Brewing Co. v. Rusch, 272 Pa. 181, 187, 116 A. 145, 147 (1922)."

[ 498 Pa. Page 11]

Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981). See Commonwealth v. Canales, 454 Pa. 422, 426, 311 A.2d 572, 574 (1973); Commonwealth v. Butts, 204 Pa. Super. 302, 309-310, 204 A.2d 481, 485-486 (1964) (allocatur denied); 1 Henry, Pa. Evidence § 460.5 (Supp. 1978); McCormick, Evidence §§ 300-303 (2d ed. Cleary 1972); 2 Wharton, Crim. Evidence § 417 (13th ed. Torcia 1972 & Supp. 1981); 3 Wigmore, Evidence §§ 736, 744-748 (Chadbourn rev. 1970 & ...


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