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COMMONWEALTH PENNSYLVANIA v. LEE GREEN (02/25/86)

filed: February 25, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
LEE GREEN, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas! Criminal Division, of Dauphin County at Nos. 2267, 2267A, 2321.

COUNSEL

Spero T. Lappas, Harrisburg, for appellant.

Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.

Wickersham, Cirillo and Johnson, JJ.

Author: Wickersham

[ 351 Pa. Super. Page 173]

Lee Green files this direct appeal from the judgment of sentence imposed upon him by the Court of Common Pleas of Dauphin County following his murder conviction.

On the evening of October 10, 1983, Michael Bollinger was shot to death at the corner of Susquehanna and Clinton Streets in the City of Harrisburg. He had left his place of employment earlier in the evening, stopped to visit his girlfriend for a short while, and was walking to his residence a few blocks away. An autopsy performed two days later revealed that he died as a result of a single gunshot wound to the head. There were apparently no eyewitnesses to the murder.

Ten days after the shooting, the police arrested William Pew, who implicated himself and a Marcel Everson in Bollinger's murder. Subsequently, William Pew changed his story and stated that the other person involved was appellant, Lee Green, and not Mr. Everson. Appellant's involvement in the murder being corroborated by two other sources, he was arrested on October 26, 1983 and taken in for questioning. After being advised of his rights, and of the fact that Pew was in custody, he made a statement admitting his participation in the robbery which led to the shooting death of the victim. The gist of the statement was that on the night of the murder, he had met Pew on Market Street, where they discussed robbing someone. Appellant borrowed a gun, and gave it to Pew. They went "uptown," saw the victim walking down an alley and began chasing him. Pew caught up with him first and when appellant arrived, Pew had the victim standing against the wall on Clinton Street. Appellant bent over to pick up a dollar bill which was laying on the ground. When Pew asked the victim if he had any more money, he said no, whereupon Pew shot him in the head. Appellant and Pew fled from the scene.

[ 351 Pa. Super. Page 174]

On October 27, 1983, the police recovered the gun that had been loaned to appellant on the date of the murder. Subsequent testing proved it to be the gun from which the fatal shot was fired.

Appellant was charged with murder, robbery, criminal conspiracy, and unlawful carrying of firearms, and was ordered to stand trial with William Pew, who was similarly charged. Appellant's motion to suppress his inculpatory statement was denied, following a hearing on January 13, 1984; however, a motion to sever his trial from Pew's was granted. After a jury trial on March 12-14 of 1984, appellant was convicted of murder in the second degree, robbery, criminal conspiracy, and unlawful carrying of firearms.*fn1 Post-trial motions were filed and denied and on July 10, 1984, appellant was sentenced to life imprisonment on the murder conviction, a concurrent term of ten (10) to twenty (20) years on the robbery conviction, a consecutive term of two and one-half (2 1/2) to five (5) years on the firearms conviction, and a term of five (5) to ten (10) years on the conspiracy conviction, the last sentence being consecutive to the first three. Appellant's motion to modify sentence was denied on July 30, 1984, and his timely appeal followed.

Appellant raises five issues on appeal:*fn2

1. Did the lower court err in denying [appellant's] motion to suppress statements?

2. Did the lower court err in allowing, at [appellant's] trial for murder, testimony that [appellant] was involved in an unrelated conspiracy to commit robbery?

[ 351 Pa. Super. Page 1753]

. Did the lower court err in allowing [appellant] to be impeached at trial by his suppression hearing testimony?

4. Was [appellant's] right to be free from double jeopardy violated when, after being sentenced and taken from the courtroom, he was returned to the courtroom to be given a more severe sentence?

5. Are the convictions against the evidence, or against the weight of the evidence?

Brief for Appellant at 2.

After careful consideration of the record, the briefs of the parties, and the relevant caselaw, we have concluded that issues 1, 3, and 5 were correctly and adequately addressed by the September 24, 1984 opinion of the Honorable Warren G. Morgan. We see no need to discuss them further.

Appellant argues that the trial court erred in admitting testimony during the trial that appellant was involved in a later conspiracy to rob a convenience store. Specifically, part of appellant's written statement to the police contained the ...


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