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COMMONWEALTH PENNSYLVANIA v. RANDALL BARRY SAKSEK (01/05/87)

submitted: January 5, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
RANDALL BARRY SAKSEK, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Berks County, Criminal Division, No. 1661/85.

COUNSEL

Nels J. Taber, Assistant Public Defender, Reading, for appellant.

Paul M. Szortyka, Assistant District Attorney, Reading, for Com., appellee.

Wieand, Tamilia and Hester, JJ. Wieand, J., concurs with opinion.

Author: Tamilia

[ 361 Pa. Super. Page 176]

This is an appeal from judgment of sentence following appellant's conviction in a jury trial of robbery, theft, reckless endangerment and receiving stolen goods.

Testimony indicated that a food store was robbed at gunpoint by a man identified by the store clerk as appellant/Saksek. A car registered to appellant was involved in a high-speed chase shortly after the robbery. Inside the car, which was found abandoned in a creek, were appellant's wallet and a receipt made out to appellant for a .38 caliber revolver. Witnesses also identified appellant as an individual hitchhiking in Lebanon, Pennsylvania, the night of the robbery. Appellant testified he was drinking and could not recall what happened that day contending his car was stolen.

On appeal five issues are raised. First, appellant contends the court erred in refusing to admit evidence in two instances. Specifically rejected were a defense witness who would testify that he had previously mistaken appellant for another individual and a newspaper article which would indicate that two men were being sought in connection with the robbery.

The admission or exclusion of evidence is within the sound discretion of the trial court and, absent a clear abuse of that discretion, the decision of the court will not be disturbed. Commonwealth v. McCue, 338 Pa. Super. 117, 487 A.2d 880 (1985).*fn1

[ 361 Pa. Super. Page 177]

The trial court determined that the offered testimony as to appellant's resemblance to another person was not relevant because there was no connection between this other person and the crime at issue. The newspaper article was excluded as hearsay. We find no abuse of discretion by the court in these rulings and appellant's claim of error must be rejected.

The next allegation of error is based upon the trial court's charge to the jury. Appellant maintains prejudicial error was committed by the court when it stated appellant had been identified by three people when, in fact, only two had positively identified appellant.

When reviewing jury charges, we must read the charge as a whole and the general effect of the charge controls. McCue, supra. In the present case, the court properly charged the jury that they were to be the finder of facts and it was their recollection which was to prevail. There is no basis for a finding of prejudice to appellant ...


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