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COMMONWEALTH PENNSYLVANIA v. CHRISTOPHER NOLEN (12/22/89)

decided: December 22, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
CHRISTOPHER NOLEN, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Dauphin County, Criminal at No. 87, 87(A) CD 1982.

COUNSEL

George Shultz, Asst. Public Defender, Harrisburg, for appellant.

Julia A. Merl, Asst. Dist. Atty., Harrisburg, for Com.

Wieand, Montemuro and Cercone, JJ. Wieand, J., concurs in the result.

Author: Montemuro

[ 390 Pa. Super. Page 350]

Appellant, Christopher Nolen, appeals from a judgment of sentence imposed following a jury verdict finding him guilty of second degree murder,*fn1 criminal conspiracy*fn2 and robbery.*fn3 The trial court denied and dismissed appellant's timely post-trial motions. On appeal, appellant challenges: (1) the admissibility of evidence of appellant's involvement in two burglaries which were not the offenses charged in this case; (2) the trial court's denial of appellant's motion for a mistrial after the Commonwealth made reference to appellant's silence during his first trial and preliminary hearing; (3) the trial court's refusal to permit appellant to cross-examine a Commonwealth witness on whether the witness received favorable treatment in exchange for his testimony at trial; and (4) the trial court's denial of appellant's motion for a mistrial after the Commonwealth indirectly referred to appellant's first trial during its opening statement. For the following reasons, we affirm.

Appellant's convictions arose out of the fatal shooting of Carroll Ritchie during the robbery of Ritchie's tavern in Londonderry Township, Pennsylvania. During the evening of November 21, 1981, two masked men armed with handguns entered Ritchie's bar; one threatened, "Don't move or I'll shoot." When Ritchie came out from behind the bar and ordered them to leave, each of the robbers fired his gun,

[ 390 Pa. Super. Page 351]

    then one fired a third shot which hit and killed Ritchie. The gunmen fled.

While investigating the incident, the police found one .38 caliber bullet and one .32 caliber bullet in the walls of the tavern; the third bullet, . 38 caliber, was removed from Ritchie's body.

The driver of the getaway car, David Crater, confessed to his role in the incident and revealed the identity of the two gunmen as Christopher Nolen, the appellant, and Dauntel Evans. During the trial, Crater testified to the following facts. At about 6:00 p.m. on November 21, 1981, Crater met up with appellant and Evans to carry out the robbery they had planned a few days earlier. When they arrived at Ritchie's bar, Crater went in, checked the place out, and then returned to the car. Appellant and Evans concealed their faces with clothing and, armed with guns, entered Ritchie's establishment. Crater waited in the car. Shortly thereafter he heard three gunshots. Appellant and Evans ran back to the car. After driving to their hometown, appellant gave his gun to Crater who later threw it into a nearby creek.

The police recovered the gun from the creek. A ballistics expert identified it as the weapon which had fired the .38 caliber bullet removed from Ritchie's body.

The first issue before us in this appeal concerns evidence admitted by the trial court of appellant's participation in two burglaries connected to the Ritchie robbery and shooting. Both appellant and Crater testified that on November 12, 1981, they and two other men burglarized the home of Warren Brubaker. The murder weapon retrieved from the creek after the Ritchie robbery was later identified as a handgun taken during the Brubaker burglary. Crater and appellant also testified that on November 19, 1981, Evans, Crater and appellant burglarized the home of Earl Herring. A handgun was taken during this burglary. An expert testified that the .32 caliber projectile recovered from the wall of Ritchie's tavern and a .32 caliber cartridge found in the getaway car matched ammunition left behind in the

[ 390 Pa. Super. Page 352]

Herring burglary. He also testified that these projectiles could have been used in the type of firearm stolen during the Herring burglary. Appellant argues that the trial court erred in admitting evidence of the Brubaker and Herring burglaries.

As a general rule, evidence of distinct crimes is inadmissible against a defendant who is being tried for another crime if it is admitted merely to show the defendant's criminal disposition. Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988); Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1, 17 (1987), certiorari denied 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). Evidence of other crimes may be admissible in special circumstances where the evidence is relevant for some other legitimate purpose and not merely to show the defendant's bad character and propensity for committing criminal acts. Id., 513 Pa. at 349-50, 521 A.2d at 17. Under the "same transaction" exception, evidence of other crimes may be admissible where the evidence forms part of the chain or sequence of events which is part of the history of the case and it enhances the natural ...


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