No. 56 Harrisburg 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Lebanon County at No. 147 of 1981.
Joseph C. Mesics, Public Defender, Lebanon, for appellant.
William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
Wickersham, Beck and Montemuro, JJ. Beck, J., files a dissenting statement.
[ 325 Pa. Super. Page 496]
On February 17, 1981, appellant, Victor Bracero, was arrested and charged with the commission of a burglary*fn1 at the home of Mr. and Mrs. Steinrock, 225 South Tenth Street in Lebanon, Pennsylvania on February 14, 1981. On June 24, 1981, after a trial held before the Honorable John A. Walter, a jury found the appellant guilty as charged. Post trial motions were filed and denied. On January 22, 1982, appellant was sentenced to pay costs and a fine of $200.00 and to undergo imprisonment for not less than five (5) years or more than twenty (20) years. This appeal timely followed.
Appellant states the sole issue on appeal as follows:
Whether the Trial Court erred in refusing to admit the testimony of a Harry Tobias, a witness whose testimony was offered in Chambers, on two occasions, during the jury trial of the case?
Brief for Appellant at 2.
The record indicates that counsel for the appellant offered the following information in chambers prior to trial:
[ 325 Pa. Super. Page 497]
MR. MESICS [counsel for appellant]: Harry Tobias, who lives at 89 Lebanon Village, will be called as a witness for Victor Bracero and he will testify as follows: That he knows a fellow by the name of Frankie Rodriquez who is also known in the community with an alias of "Spunk"; that he spoke with this fellow "Spunk" on Friday, the 20th of February, 1981. Harry was over at the Down Town Lounge socializing, and he saw "Spunk" there. "Spunk" was talking about going to Florida. "Spunk" told Harry that he would give him a hundred dollars for the ride, so he took "Spunk" with him.
During this trip between Lebanon and Miami, Harry observed that "Spunk" had a lot of money with him. He saw a lot of money in his wallet, and he dropped "Spunk" off in Miami. While they were going down there, "Spunk" told Harry Tobias that he did a robbery on Tenth Street.
They left for Florida on Saturday, the 21st of February, at 4:00 in the afternoon. They got there on Sunday, the 22nd of February, at 8:00 at night, and they drove down in Harry Tobias' Alpha Romeo Grand Prix automobile. "Spunk" told Harry that while he was committing this burglary, that the lady screamed and then he left the house. The house was several stories in heighth and it was on Tenth Street in Lebanon, and that "Spunk" -- he will testify that "Spunk" looks exactly like Victor Bracero.
MR. FEEMAN [assistant district attorney]: I object to that. It's not admissible. Number one, it's irrelevant. Number two, it doesn't exclude the Defendant. Number three, it is all hearsay.
MR. MESICS: Okay. I would like to also state this on the record, that I also have another witness, a Maria Ramos*fn2 who went to Detective Heverling on the 5th of
[ 325 Pa. Super. Page 498]
March of 1981 and reported essentially the same thing to Detective Heverling; that she had also talked to this fellow "Spunk" and that "Spunk" had talked to her about how he wasn't gonna take the rap, and that he had silver that was stolen and he was taking it over to Louie's Action Center. So, there's some basis ...