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COMMONWEALTH PENNSYLVANIA v. MARK FREEMAN (06/27/89)

decided: June 27, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
MARK FREEMAN, APPELLANT



Appeal from the Judgment of Sentence of September 20, 1988 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 8802-0666 and 0668.

COUNSEL

John Packel, Asst. Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Brosky, McEwen and Hoffman, JJ.

Author: Hoffman

[ 386 Pa. Super. Page 106]

This appeal is from the judgment of sentence for aggravated assault and conspiracy. Appellant contends that the trial court erred in permitting the prosecutor, in his cross-examination of appellant, to make reference to appellant's post-arrest silence. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.*fn1

Appellant was arrested and charged with robbery, aggravated assault, conspiracy, and violation of the Uniform Firearms Act. On June 3, 1988, following a jury trial, appellant was acquitted of the robbery charge, but found guilty of the remaining charges. Timely post-trial motions were filed. On September 20, 1988, the trial court arrested judgment on the firearms charge, and denied post-trial motions in all other respects. The court then sentenced appellant to an aggregate term of six-to-fifteen-years imprisonment. This timely appeal followed.

Conflicting evidence was introduced at trial. The complainant, Arthur Klein, testified that, on December 3, 1987, he was in his business office in Philadelphia. Appellant and his co-defendant, James Swinton, entered the office, claiming that the co-defendant wanted to rent an apartment. Klein stated that, as he was walking to the back of his office, appellant grabbed him from behind and pressed a gun against his head. A struggle ensued. During the course of the struggle, Klein was able to hold off both defendants, draw his own gun, and shoot both men.

[ 386 Pa. Super. Page 107]

Appellant testified in his own behalf. He stated that, at the time of the incident in question, he had been out of work and began to deliver cocaine in order to make money. One of the people he delivered to was Arthur Klein. Appellant admitted that on one occasion prior to December 3, 1987, he sold a package that had been intended for Klein. On December 3, he went to Klein's office in an attempt to make amends. When he arrived at the office, the co-defendant, whom he did not know, was already there, talking to Klein. Klein let appellant in, and an argument and fight followed. During the fight, appellant saw Klein pull a .25 caliber pistol. As they struggled over that weapon, appellant was shot with a second gun, a .38 caliber revolver. Appellant never saw the second gun. After he was shot, appellant blacked out and did not see the altercation between his co-defendant and Klein.

At the end of appellant's testimony on direct examination, the following exchange occurred between appellant and his counsel:

Q. Now, were you in any condition to give the police your version of what was going on ...


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