No. 402 Harrisburg 1982, Appeal from the Judgment of Sentence November 10, 1982 in the Court of Common Pleas, Dauphin County, Criminal, No. 89, 89A C.D. 1982.
Spero T. Lappas, Harrisburg, for appellant.
Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Wickersham, Olszewski and Hoffman, JJ. Hoffman, J., filed a concurring statement.
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Appellant challenges his convictions for murder in the second degree, criminal conspiracy and robbery.
The convictions follow a shooting during an attempted robbery of Ritchie's Bar and Tavern, Middletown, Pennsylvania. The incident left Carroll Ritchie, the 75 year old proprietor, dead.
The facts developed at trial show that on November 21, 1981, about 7 p.m., two armed men entered Ritchie's Bar. They demanded money from Mr. Ritchie who was then working behind the bar. He refused and, approaching the two robbers, ordered them out of his establishment. Two shots flashed, then a third. Mr. Ritchie fell to the ground; the two robbers left.
The police recovered three spent bullets. One .38 caliber bullet had struck and killed Mr. Ritchie. Two others, a .32 caliber bullet and another .38 caliber bullet, had missed Mr. Ritchie. They were found in the area behind the bar.
On information supplied by David Crater, appellant and Nolen (appeal docketed to No. 411 Harrisburg 1982) were arrested and charged with the crime.
Crater, who had driven the getaway car, testified that he had met with appellant and Nolen early that evening. The three boys then had joined in the plan to commit a robbery that evening.
When they arrived at Ritchie's, Crater "cased" the bar and reported what he had seen to the other two. Nolen and
[ 332 Pa. Super. Page 306]
Evans disguised their faces with clothing and entered the bar. A few moments later, Crater heard two shots and then a third. Nolen and Evans ran back to the car. Crater quoted Nolen as saying that the man [Ritchie] had tried to be "like superman" and that he [Nolen] "just shot the old mother fucker."
Nolen and Evans entered pleas of "not guilty." Following trial, the jury returned verdicts of guilty, murder in the second degree. Timely post-verdict motions were filed and denied. Judge Morrison sentenced appellants November 10, 1982.
Appellant assigns as error the following. The trial court denied appellant his right to cross-examine Crater about other charges then pending against him in Dauphin County. In particular, the trial court refused to allow questions about Crater's hope of leniency on those charges in exchange for his testimony in the case at bar.
The trial court admitted into evidence, over counsel's objections, evidence about burglaries at the home of Warren Brubaker and that of Earl Herring.
The trial court failed to grant appellant's Motion for Severance.
The trial court allowed the prosecution to examine appellant's alibi witness about an alleged homosexual relationship with the appellant.
We will address these issues seriatim.
Scope of Cross-Examination of ...