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COMMONWEALTH PENNSYLVANIA v. ROBERT MCCABE (09/18/85)

filed: September 18, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ROBERT MCCABE, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Schuylkill County, No. 363-1983.

COUNSEL

Cyrus P. Dolbin, Pottsville, for appellant.

Kate Dreher, Assistant District Attorney, Pottsville, for Commonwealth, appellee.

Spaeth, President Judge, and Wieand and Geisz,*fn* JJ. Spaeth, President Judge, files a dissenting opinion.

Author: Wieand

[ 345 Pa. Super. Page 497]

Robert McCabe was tried before a jury on charges of robbery,*fn1 theft by receiving stolen property,*fn2 criminal conspiracy,*fn3 and hindering prosecution.*fn4 The jury acquitted him of theft and conspiracy, was unable to agree upon a verdict on the robbery charge, and found him guilty of hindering prosecution. The trial court subsequently found the evidence insufficient on the robbery charge and granted a post-trial motion for acquittal. The court refused post-verdict relief on the conviction for hindering prosecution and imposed a sentence of probation. On direct appeal, McCabe asks this Court to decide the following issues:

1. May a defendant be convicted of a crime where there is no independent proof of the commission of that crime, but only the Defendant's statement that he committed such a crime?

2. Even where there is no independent proof of the commission of a crime, may a defendant waive the protection

[ 345 Pa. Super. Page 498]

    of the corpus delicti rule, and be convicted upon his own testimony alone?

The information charged appellant with concealing or destroying relevant evidence in the nature of a note found at the scene of a robbery. The police learned of the existence of the note from appellant, who told them he had destroyed it. At trial, the Commonwealth was unable to produce independent evidence that the note existed. Because the Commonwealth was unable to prove the corpus delicti of this offense, the trial court sustained an objection to a testimonial reference to appellant's oral statement by Trooper Bordenaro, a witness for the prosecution. On cross-examination, the witness was asked whether appellant had made a statement in which he denied involvement in the crime,*fn5 and the witness agreed that he had. On redirect-examination, the witness was asked precisely what appellant had said. He was permitted to testify, over objection, that appellant's statement had included "that he found a note at the robbery scene addressed to Diego Robinson, that he put the note into his pocket and that he later destroyed it. The question and answer [were] permitted because defense counsel had 'opened the door' to the entire conversation between defendant and the officer by inquiring as to that part of the conversation which favored the defendant."*fn6

The law is clear that "where one party offers part of a conversation, the other is entitled to bring out the balance . . . ." Commonwealth v. Nelson, 294 Pa. 544, 546, 144 A. 542, 543 (1929). "If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area." Commonwealth v. Gonce, 320 Pa. Super. 19, 37, 466 A.2d 1039, 1049 (1983), quoting Commonwealth v. McCloughan, 279 Pa. Super. 599, 604, 421 A.2d 361, 363 (1980); Commonwealth v. Stakley, 243 Pa. Super. 426, 430,

[ 345 Pa. Super. Page 499365]

A.2d 1298, 1300 (1976). In the instant case, moreover, the receipt of appellant's statement was harmless. Appellant took the stand in his own defense and testified to the same facts which he had related to Trooper Bordenaro on the night of the robbery. Appellant testified "that at the scene of the robbery he had picked up a piece of paper, put it into his pocket, that he had read the note which was addressed to Diego and had later told the State Police that he had gotten rid of the note -- had thrown it in the garbage." The decided cases are uniform in holding that error in receiving an extra-judicial statement of the defendant is rendered harmless if the defendant thereafter takes the stand in his own defense and reiterates or corroborates his statement. Commonwealth v. Saunders, 459 Pa. 677, 681, 331 A.2d 193, 194 (1975). Accord: ...


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