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COMMONWEALTH PENNSYLVANIA v. DERRICK STARKS (09/17/82)

filed: September 17, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
DERRICK STARKS, APPELLANT



NO. 50 Philadelphia, 1981, Appeal from the Judgment of Sentence of December 30, 1980, in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 1207, 1208, 1210, 1211, February Sessions, 1979.

COUNSEL

Jack M. Myers, Philadelphia, for appellant.

Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, McEwen and Lipez, JJ.

Author: Mcewen

[ 304 Pa. Super. Page 529]

We here review an appeal from the judgment of sentence imposed after the conviction of appellant by a jury of charges of robbery, murder in the second degree, possession of an instrument of crime and conspiracy. The distinguished Philadelphia Common Pleas Court Judge Charles P. Mirarchi sentenced appellant to concurrent terms of ten to twenty years for robbery, five to ten years for conspiracy and two and one-half to five years for possession of an instrument of crime and, in addition, to a term of life imprisonment for the second degree murder to be served consecutively to the sentence imposed for robbery. We affirm the decision of the Common Pleas Court but are compelled to vacate the judgment of sentence and remand for resentencing.

On February 1, 1979, at approximately 9:30 p.m., Thomas Supplee knocked at the door of a home in Philadelphia and was admitted by Velvette Matthews. Supplee was followed by appellant and another man, both of whom carried shotguns. After appellant announced the "stick-up", Miss Matthews began to struggle with one of the shotgun-wielding men. The commotion awakened her brother, Karl Sutton, who was upstairs. As Karl Sutton came down the stairs, appellant fired his shotgun, killing Sutton. Thereafter Miss Matthews who had known appellant for more than twelve years, identified appellant as the killer to the police and reiterated that identification at the trial during direct examination as well as during vigorous cross-examination.

Appellant challenges the use at trial of a tape recorded interview of Velvette Matthews by one of the investigating detectives. The several attacks on the tape recording

[ 304 Pa. Super. Page 530]

    have no merit. The defendant first complains that he was not informed, prior to trial, of the existence of the tape recording. The Commonwealth had provided appellant, in compliance with a court ruling at discovery proceedings entered pursuant to Pa.R.Crim.P. 305, with the written statement which Miss Matthews had made to police immediately after the crime. However, the Commonwealth was not advised by police that a tape recording was made during the course of that interview with Miss Matthews until after the trial in this matter commenced. The Commonwealth immediately advised defense counsel and made it available. The court offered counsel the opportunity to litigate whatever issues and employ whatever procedures counsel for appellant might deem desirable by reason of this belated disclosure, and even offered to recess the trial for any necessary examinations. The Court clearly complied with Pa.R.Crim.P. 305(E).*fn1 Defense counsel did not find it necessary to avail himself of these offers. Under these circumstances no prejudice to the defense resulted and it cannot be said appellant was denied a fair trial. See Commonwealth v. Glass, 495 Pa. 405, 434 A.2d 707 (1981); Commonwealth v. Parente, 294 Pa. Super. 446, 440 A.2d 549, 552 (1982).

The defense next challenges the tape recording on the ground that no adequate foundation for its admission was laid. The Supreme Court of this Commonwealth has stated that:

[T]ape recordings are admissible in evidence when they are properly identified and are a true and correct reproduction of the ...


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