Opinion
September 19, 1972.
November 16, 1972.
Criminal Law — Evidence — Defendant asked whether a damaging statement had been made in another trial, when, in fact, there had been no such damaging statement — Case not one where testimony relating to improper cross-examination caused the fact-finder to be misled.
1. In this case, in which it appeared that defendant was asked on cross-examination whether a damaging statement had been made in another trial, when, in fact, there had been no such damaging statement; and that defendant denied that there was such a statement and counsel informed the trial judge, sitting without a jury, that there was no such statement, and the court, as the finder of fact, indicated that no reliance was placed on the existence of such a statement; it was Held on appeal that this was not a case where the testimony relating to improper cross-examination caused the fact-finder to be misled, and the judgment of sentence was affirmed.
Criminal Law — Sentence — Contention that defendant received a longer sentence as compared with that of co-defendants previously tried before another judge because of his refusal to admit guilt.
2. Defendant's claim of sentencing error in that he had received a longer sentence as compared with that of co-defendants previously tried before another judge based exclusively on the defendant's refusal to admit guilt, was Held, under the circumstances, to be without merit.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 794, Oct. T., 1972, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1971, No. 1308, in case of Commonwealth of Pennsylvania v. Carroll Hill. Judgment of sentence affirmed.
Indictment charging defendant with aggravated robbery. Before SMITH, JR., J., without a jury.
Finding of guilty and judgment of sentence entered thereon. Defendant appealed.
Morris H. Wolff, with him Stassen, Kostos and Mason, for appellant.
Norris Gelman, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Argued: September 19, 1972.
The appellant claims a trial and a sentencing error. At trial, the assistant district attorney asked the defendant on cross-examination whether there had not been a damaging statement made in another trial. In fact there had been no such damaging statement. Although the question was manifestly improper, the witness denied that there was such a statement, counsel informed the court that there was no such statement and the court, as the finder of fact, indicated that it put no reliance on the existence of such a statement. Therefore, this is not a case where the testimony relating to improper cross-examination causes the factfinder to be misled.
Cross-examination is misleading if it makes an assumption which is contrary to fact. DiBona v. PTC, 356 Pa. 204, 51 A.2d 768 (1947); Commonwealth v. Ross, 190 Pa. Super. 145, 152 A.2d 778 (1959); Seligson v. Young, 189 Pa. Super. 510, 151 A.2d 792 (1959).
See Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056 (1972).
Sentencing error is claimed because two co-defendants, previously tried and sentenced by another judge, received sentences of four to 23 months in contrast to appellant's sentence of one to five years. Contrary to appellant's claim, this case is not one in which there is inequality of sentence or the imposition of a high sentence, based exclusively on the defendant's refusal to admit his guilt. It is true that the judge stated: "This Court feels very strongly that the first step, if rehabilitation is ever to take place, is a recognition into the seriousness of the offense, for without some insight into the act there can never be any rehabilitation in this Court's opinion." As the court pointed out, however, it reviewed all the appropriate factors going into the sentencing process, including the appellant's prior record.
Appellant relies on Scott v. United States, 419 F.2d 264 (D.C. Cir. 1969); Thomas v. United States, 368 F.2d 941 (5th Cir. 1966).
Judgment of sentence affirmed.