Commonwealth v. Dukeman

56 Pa. D. & C.2d 545, 1971 Pa. Dist. & Cnty. Dec. LEXIS 54
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedJuly 21, 1971
Docketno. 262
StatusPublished

This text of 56 Pa. D. & C.2d 545 (Commonwealth v. Dukeman) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dukeman, 56 Pa. D. & C.2d 545, 1971 Pa. Dist. & Cnty. Dec. LEXIS 54 (Pa. Super. Ct. 1971).

Opinion

REED, JR., J.,

On April 14, 1968, Burman’s antique and coin shop at 237 Baltimore Pike, Springfield, Delaware County, was burglarized. On April 30, 1970, defendant was arrested for this crime and charged with burglary, larceny and conspiracy. He was tried by jury commencing September 29, 1970, and convicted of burglary, only, on October 5, 1970. The dates are important. At the conclusion of Commonwealth’s case, a demurrer to the conspiracy charge was sustained, by reason of the statute of limitations.

At the conclusion of the trial, defendant filed motions for new trial and in arrest of judgment. On November 10, 1970, defendant petitioned to interrogate jurors, which was denied without prejudice to argue the same as a further reason for new trial.

Burman’s shop was broken into on April 14, 1968, by cutting a hole in the roof. Nothing, however, was taken because an alarm was tripped and the burglar fled; hence, the anticipated larceny failed.

The Commonwealth’s case rested upon the testimony of Jerome John McKenney, an admitted and convicted felon, who admittedly faces trials on other charges. He portrayed himself as a former member of an extensive burglary ring, now engaged in redeeming his soul and cleansing his conscience by confess[547]*547ing to all the crimes he had been involved in, naming his accomplices and associates in crime.

Jerome John McKenney testified that in the late evening of April 14, 1968, he, a Gilbert Seagraves and a Jacob Rosen drove to the shop. Rosen drove his car, dropping McKenney and Seagraves off at the side of the shop. These two then climbed onto the roof and chopped a hole in it. McKenney climbed through the hole into an office below, while Seagraves waited on the roof. McKenney crawled on his hands and knees to the location of the safes, where he unwittingly crossed the beam of an alarm which sounded on the outside of the building. He quickly retraced his path, got out of the hole, where he met his accomplices and they all fled.

McKenney explained that he and Seagraves had discussed this a few weeks previously with defendant Dukeman, who wanted them to do the “job,” at a meeting in a restaurant in Lansdowne, Pa. Dukeman told them that the Burman shop had quite a few gold bars and guns in the safe and drew a diagram of the shop. In return for the information, Dukeman, as only a “tipster,” was to receive between 10 percent and 15 percent of the “take.” Dukeman then took them to see the location of the shop. They later went to Rosen s home where they discussed the “job” and even considered kidnapping Burman and his wife to use them for access to the shop and safes.

McKenney related that subsequent to the aborted incident, Dukeman was upset and disappointed that they didn’t “score,” and that he, Seagraves and Duke-man considered “importing” a gunman from New Jersey to do the job.

Defendant Dukeman, also an admitted and convicted felon, flatly denied any connection with [548]*548or involvement in the job, as well as any knowledge of Mr. Burman or his shop. He admitted knowing McKenney, but not prior to October 1968, after this incident.

Defendant raises six points in support of his motions for new trial and in arrest of judgment.

A. Did the court commit error in refusing defendant’s two motions for a mistrial?

1. Defendant contends that the testimony of McKenney concerning discussions after April 13, 1968, of importing gunmen to perform the aborted “job,” was beyond the scope and embrace of the conspiracy, and his motion for a mistrial at that time should have been granted. Such contention necessarily falls of its own weight. The conspiracy was not to cut a hole in the roof, go in, look around and get out. It was to get valuables therein. Until these were obtained, the conspiratorial agreement continued unless abandoned, which occurred when the efforts to get “imported” gunmen failed, and as McKenney said they “decided to leave it go, and go after something else.”

The conspiracy continues until the object is completed, or so long as it is under consideration, and within those confines any related evidence is admissible: Cleaver v. United States, 238 F. 2d 766 (1956).

We agree that both defendant and Commonwealth cite the same controlling law. Defendant, however, fails to grasp the object of the conspiracy, and this contention has no merit.

2. The assistant district attorney during redirect examination of Commonwealth’s witness McKenney, said:

“What is the occupation of Barker, legal or illegal?”

This had been prefaced by a reference to the fact [549]*549that McKenney on cross-examination had testified to being in defendant’s company on some 30 occasions. McKenney said at different times, there were other men present. McKenney said that four of these men were: Thomas Barker, John Pettronie, Charles Fisher and Gilbert Seagraves. The Assistant district attorney then asked the question in issue.

Defense counsel promptly objected that the question was prejudicial and moved for a mistrial. The court denied this motion, and directed the jury to disregard it because it was an improper question by the assistant district attorney.

Defendant contends that this question excited or implanted a prejudice in the jury’s mind against defendant. Defendant correctly cites the legal test to be applied, which is that the remark must be of such unavoidable effect as to prejudice the jury forming in their minds a fixed bias and hostility toward defendant: Commonwealth v. Flaherty, 167 Pa. Superior Ct. 19, 74 A. 2d 506 (1950); Commonwealth v. Meyers, 290 Pa. 573, 139 Atl. 374 (1927).

When we consider that McKenney mentioned no associates or friends who were not criminals, and that the defense consistently explored this realm in cross-examination, when we consider McKenney consistently placed defendant in and with criminal associates, it is difficult to imagine anyone mentioned who was not a criminal.

The assistant district attorney had a right to ask of Barker’s occupation; that he did so by the ploy he used, while not a practice to be commended, cannot here be raised to the status of the prejudice required.

It would have been surprising if McKenney had answered the question and said that Barker’s occupation was legal. The jury would indeed, in this case, have been impressed and skeptical. In the course of [550]*550this trial, McKenney mentioned no one except law enforcement officers and attorneys, who did not have criminal connections, and most he said knew defendant. Defendant also admitted knowing some of them. In the whole case, Barker s occupation had no significance. However, the question was unnecessary and utterly pointless, and we note that in instructing the jury to disregard it, the trial judge did give a type of reprimand to the assistant district attorney by saying it was an improper question, which was helpful to the defense.

B. Was the verdict against the weight of the evidence?

The Commonwealth proved a burglary had been committed. The only testimony implicating defendant was that of an admitted and convicted felon and co-conspirator. Such a witness is competent to testify: Commonwealth v. Viscosky, 83 Pa. Superior Ct. 96 (1924).

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Redmond v. Pittsburgh Railways Co.
198 A. 71 (Supreme Court of Pennsylvania, 1937)
Commonwealth v. Meyers
139 A. 374 (Supreme Court of Pennsylvania, 1927)
Friedman v. Ralph Brothers, Inc.
171 A. 900 (Supreme Court of Pennsylvania, 1934)
Commonwealth v. Curry
148 A. 508 (Supreme Court of Pennsylvania, 1929)
Commonwealth v. Viscosky
83 Pa. Super. 96 (Superior Court of Pennsylvania, 1924)
Commonwealth v. Greevy
114 A. 511 (Supreme Court of Pennsylvania, 1921)
Commonwealth v. Flaherty
74 A.2d 506 (Superior Court of Pennsylvania, 1950)
Cleaver v. United States
238 F.2d 766 (Tenth Circuit, 1956)

Cite This Page — Counsel Stack

Bluebook (online)
56 Pa. D. & C.2d 545, 1971 Pa. Dist. & Cnty. Dec. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dukeman-pactcompldelawa-1971.