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COMMONWEALTH PENNSYLVANIA v. DONNELL JONES (03/22/85)

filed: March 22, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DONNELL JONES, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County, No. 812-1982.

COUNSEL

Ronald J. Karasek, Bangor, for appellant.

John L. Obrecht, Assistant District Attorney, Northampton, for Commonwealth, appellee.

Wieand, Del Sole and Popovich, JJ.

Author: Wieand

[ 340 Pa. Super. Page 450]

The principal issue in this appeal is whether jurors in a criminal case may be permitted to disperse overnight after a case has been submitted to them for deliberation. Other issues raised by appellant are lacking in merit and will be disposed of summarily.

Donnell Jones was tried by jury jointly with a co-defendant, Ruben Odom. Jones was found guilty of two counts each of robbery, felonious restraint, recklessly endangering another person, terroristic threats, three counts of theft and one count of conspiracy. After post-trial motions had been denied, he was sentenced to serve not less than seven and one-half nor more than fifteen years in prison. This is a direct appeal from the judgment of sentence.

The Commonwealth's evidence showed that on July 21, 1982, at or about 3:15 p.m., Dennis Kelley responded to a knock at the front door of the home of Dr. John Nelson, where Kelley was residing, in Upper Mt. Bethel Township, Northampton County. Kelley identified the man at the door as Ruben Odom. On the pretense of asking for water for an overheated auto, Odom and at least one other person forced Kelley inside and bound and terrorized him. The men then began to ransack the house. At or about 3:30 p.m., Henry Newman, an employee of Commonwealth Telephone Company, observed picture frames being carried from the Nelson home. When Newman approached the man carrying the frames and asked about Dr. Nelson's whereabouts, he found himself looking into a drawn gun.

[ 340 Pa. Super. Page 451]

He, too, was bound, terrorized, and robbed. He identified Donnell Jones as the person whom he had seen carrying picture frames from the home and who had threatened him with a gun.

Russell Strouse was called as a defense witness by Ruben Odom, the co-defendant. During the course of Strouse's testimony, he said that he had observed Jones in an automobile with other persons on the evening of the robbery and that items removed from the Nelson home had been present in the vehicle. He also testified, without objection, that prior to the day of the robbery he had had a conversation with a person named Posten, who was also alleged to be a co-conspirator. During that conversation, Posten had told him of the plan to commit a crime at the Nelson home and named the persons who were going to participate. Odom, according to Strouse, had not been one of the persons identified by Posten. On cross-examination, the District Attorney was permitted to ask the witness, over objection, to name those persons who had been identified by Posten. Included among those named was the defendant, Donnell Jones.

The trial court overruled a hearsay objection to this testimony by Jones. However, the trial court carefully instructed the jury that Odom's cross-examination of Strouse was being permitted only to challenge the credibility of Strouse, who had been called as a defense witness, and that the witness's testimony could not be considered as substantive evidence against Jones. Specifically, the trial court said, the evidence was not to be considered as evidence to show that Jones had been a participant in the commission of the crime. In view of these instructions, it cannot be said that the trial court's ruling which allowed Strouse to be cross-examined fully about the statement made by Posten is a sufficient basis for awarding Jones a new trial.

Henry Newman made an in-court identification of appellant. He was not asked and did not testify concerning a series of photographs displayed to him on July 30, 1982. Officer Joseph ...


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