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COMMONWEALTH PENNSYLVANIA v. CARL TERRY MASON (12/30/83)

filed: December 30, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
CARL TERRY MASON, JR., APPELLANT



No. 1201 Pittsburgh 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Butler County, Criminal at C.A. No. 156 of 1981, Book 71, Page 48.

COUNSEL

William Roy Shaffer, Butler, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth and Hester, JJ.

Author: Spaeth

[ 324 Pa. Super. Page 245]

Appellant was convicted by a jury of robbery. On appeal from the judgment of sentence, he argues (1) that he should be granted a new trial because a tipstaff refused the jury's request to see an exhibit, without informing the trial court

[ 324 Pa. Super. Page 246]

    of the request; or (2) that if a new trial is denied, the case should be remanded for resentencing because the sentencing judge did not adequately state of record the reasons for the sentence. We agree that the action of the tipstaff was error, but find that it was harmless. Appellant's second argument has been waived. We therefore affirm.

Appellant was charged with committing an armed robbery at the L'il Shopper in Slippery Rock, Pennsylvania, on February 2, 1981. At the trial, on June 25, 1981, the Commonwealth's evidence consisted primarily of the testimony of the cashier, who said that the man who robbed her was wearing a red ski mask and a denim jacket, N.T. 8-9; the testimony of the investigating officer, Thomas Eckels, who noticed distinctive footprints in the snow outside the store, and later noticed that, when arrested, appellant was wearing boots that would leave similar prints, N.T. 25-26, 28-29, 36-37, 38; and the testimony of an informant, who said that appellant had admitted to him that he was responsible for the robbery, N.T. 50. In addition, the left boot and denim jacket that appellant was wearing when arrested were admitted into evidence and sent out with the jury. Appellant offered two principal witnesses: his mother, who said that she had seen appellant go to bed about an hour before the robbery, N.T. 86, and that he could not have left the house without being seen, N.T. 87; and appellant himself, who gave the same account of his activities as his mother did, N.T. 97-98.

Appellant's argument for a new trial arises out of a conversation that a juror had with a tipstaff after deliberations had begun. An evidentiary hearing was held on August 21, 1981 at which time the juror testified that:

A. I went to the door and requested of the tipstaffs that we have the search warrant and some notes that Officer Eckles [ sic; Eckels] had made the evening of the robbery of the Little Shopper.

Q. And what did the tipstaff reply to you?

A. We were told that we were not permitted to have ...


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