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COMMONWEALTH PENNSYLVANIA v. DERRECK SMITH (01/13/89)

filed: January 13, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DERRECK SMITH, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, at No. 2119 C.D. 1986.

COUNSEL

Richard F. Maffett, Jr., Harrisburg, for appellant.

Theodore B. Smith, III, Assistant District Attorney, Harrisburg, for Com., appellee.

Olszewski, Montgomery and Hoffman, JJ. Olszewski, J., files a dissenting opinion.

Author: Per Curiam

[ 380 Pa. Super. Page 612]

This is a direct appeal from the judgment of sentence imposed upon the appellant after he was found guilty by a jury of perjury. Timely filed post-verdict motions were denied by the trial court and the appellant was sentenced to a term of imprisonment of two to four years and fined one hundred dollars. This appeal followed. For the reasons which follow, we are constrained to vacate the judgment of sentence and remand the matter for a new trial.

Before reaching the appellant's argument, a review of the pertinent facts is necessary. The appellant and Leslie Neely, together with a third individual named Leonard Miller, hired a taxi on November 12, 1985. After the driver had taken them to their desired location, the driver was assaulted and robbed. An investigation, which included the appellant's statement to the police identifying Miller as the robber, ultimately led to Miller being charged, tried, and convicted of the robbery. At the Miller trial, the appellant testified as a Commonwealth witness. In contradiction to his earlier statement, the appellant testified that Leslie Neely had committed the robbery. Subsequently, the appellant was arrested and charged with one count of perjury in connection with his testimony at the Miller trial. It is the conviction of that charge which gives rise to the instant appeal.

At the appellant's trial, the Commonwealth produced the testimony of the victim of the original robbery, George Masterson. He testified that while driving his taxi, he was hired by two black males and one black female. He drove the fares to an alley in the City of Harrisburg. There, as he was bending over to remove a package from the hatchback of the cab, he was struck on the back of the head by one of the passengers and robbed. The victim also testified

[ 380 Pa. Super. Page 613]

    that both Leslie Neely and the appellant were considerably further away from him than was Miller at the time he was assaulted. Leslie Neely testified as to the commission of the robbery by Miller.

Also testifying at the appellant's trial was the investigating officer. He testified that he interviewed the appellant in the course of his investigation and that the appellant stated that Miller had robbed the cab driver. The officer recounted the appellant's testimony from the Miller trial, the basis for the perjury charge, by reading the pertinent portion of the transcript. On cross-examination, the officer read additional excerpts from the appellant's testimony at the Miller trial. These excerpts included statements offered by the appellant to explain the difference between his testimony and the statement he had earlier provided to the police. The appellant maintained that his statement to the investigating officer was false because he did not want his child, then being carried by Leslie Neely, to be born in jail. Thus, by implicating Leonard Miller, Neely was apparently able to retain her freedom and give birth. On redirect examination, and over defense counsel's objection, the Commonwealth had the officer read those excerpts from the appellant's testimony at the Miller trial wherein he acknowledged his prior criminal convictions of offenses in the nature of crimen falsi.*fn1 This, he argues, was error.

The trial court reasoned that it approved the Commonwealth's actions only after it had given permission for the appellant to have the officer read the excerpts wherein the appellant attempted to explain the contradiction. The trial court noted that before permitting the defense to introduce the excerpts of the appellant's attempted explanations, it cautioned the appellant that by doing so the Commonwealth would then have the right ...


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