Commonwealth v. BruceCommonwealth v. Bruce
- Reporters:
- , ,
- Before:
- Bell
Lead Opinion
Opinion by
Mb. Chief Justice Bell,Harry L. Bruce was charged with assault and battery, aggravated assault and battery, aggravated robbery, indecent assault, assault and battery with intent to ravish, and burglary. On May 25-26, 1966, he was tried before a Judge and jury. Thе jury returned guilty verdicts on all charges except the charge of indecent assault.
Defendant’s post-trial motions for a new trial and for an arrest of judgment were denied. Thereafter, judgment of sentence was entered and defendant appealed to the Superior Court. The Suрerior Court affirmed per curiam. Defendant filed a petition in this Court for the allowance оf an appeal. We granted the petition.
Defendant was accused of breaking into the apartment of Mr. and Mrs. Coscarello and assaulting Mrs. Coscarello and robbing her. She testified thаt she was alone and sleeping in her apartment and that she was *70.awakened- by noises. She disсovered a man standing oven ‘her’ and, he stated, “This is a hold-up.” She screamed, and he began to beat her viciously on her head with a blunt instrument. He then told her to give, him all, of her money, and she gave him $10 from her pocketbook. . Mrs. Coscarello identified defendant from a series of photоgraphs, and later picked him out of a line-up. ’
Defendant’s defense was that of an alibi. Prior tо the trial, he filed a notice under Pennsylvania Rule of Criminal Procedure 312, naming his employer as an alibi witness. At the trial, defendant’s employer, called by defendant as his witness, testified that he kept no records of attendance and that he could not be certain whether defendant was working on the job on the day the crime was committed. He further stated that defendant missed several dаys from work and he could not be certain whether one of those days coincided , with the datе of the crime.
.Defendant then took the witness stand and testified in his. own behalf. On cross-examination, hе was asked whether his, employer had any other employees at the store. Defendant replied, “Yes.” The following pertinent questions were asked by the district attorney : “Q. Was that butcher present in the store on a steady basis every single day? A. Yes. Q. Is he in Court today? A. No. Q. If you were working on that Mоnday [the day of the crime], he would have seen you ? A. Yes. Mr. Creskoff: No further questions. Mr. Pepp: The dеfense rests. Mr. Creskoff: The Commonwealth will offer no rebuttal.”
The trial Court charged as follows: “I think something was said about the failure of witnesses to appear. Technically, I must say to you, where there is a .situation in. .a. case of an important witness who might have been produced and no explanation is given *71as to why that person was not produced, you may infer that had that persоn appeared, his testimony might not have been favorable to the person who would havе called him.”
Defendant’s sole contention is that the lower Court erred in charging the jury that they could infer that the testimony of an absent witness would be adverse to the defendant. The trial Court did not so сharge. Moreover, defendant did not take a general exception to the Court’s chаrge, and took no exception to this portion of the charge. However, in spite of thаt, we have considered the defendant’s contention, and find no merit in it.
Under the trial Judge’s charge, the jury would have been permitted to infer that if the absent witness had appeared, that witness’s “testimony might not have been favorable to the person who would have called him.” In this case, the jury сould just as easily have inferred that the testimony of the absent witness might have been unfavorable to the Commonwealth instead of unfavorable to the defendant.
We find no basic or fundamental error.
Judgment of the Superior Court affirmed.
Mr. Justice Cohen dissents.
Concurrence Opinion
Concurring Opinion by
Mr. Justice Roberts:I would decide this ease on thе basis of the failure by counsel at the trial to except to that portion of the charge to which objection is now made. This should be conclusive of the claim. See Commonwealth v. Chambers, 432 Pa. 253, 247 A. 2d 464 (1968); Com*72monwealth v. Simon, 432 Pa. 386, 248 A. 2d 289 (1968) (opinion in support of the order); Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968) (dissenting opinion). However, I also must point out the inconsistencies in the majority opinion. First, it correctly notes thаt no objection was made to the charge. Then it proceeds to decide the chаrge error on its merits, only to indicate by implication that there was no need to reaeh thе substantive question because the error was neither basic nor fundamental. As I said in Commonwealth v. Johnson, 433 Pa. 34, 248 A. 2d 840 (1969) (concurring oрinion), this. Court must consistently apply its own basic and fundamental test to those cases where the еrror to which objection is made was not raised in the court below. The only reasonable alternative is to adopt the standard which I have urged in both Simon and Williams. But without doubt it is improper to apply the basic and fundamental error test in some cases and not in others.
I concur in the result.
Concurrence Opinion
Concurring Opinion by
Mr. Justice Jones:I concur in the result only. The dеfendant, represented by counsel, sat idly by and made no objection to the instruction complained of.