195 Pa. Super. 356 | Pa. Super. Ct. | 1961
Opinion
Defendants, Frank M. Gaito and Joseph Gaito, were indicted in Allegheny County on charges of (1) burglary, (2) assault with intent to kill, and (3) violation of the Firearms Act. They were tried before President Judge Clark, of the Fortieth Judicial District, specially presiding, and a jury; and they were found guilty on all indictments. On the indictment for burglary, each defendant was sentenced to pay a fine of $500 and to serve a term of not less than ten years nor more than twenty years. On the indictment for assault with intent to kill, each defendant was sentenced to serve a term of not less than three and a half years nor more than seven years; sentences were to run consecutively. On the convictions under the Firearms Act, sentence ivas suspended on payment by defendants of costs of prosecutions. Motions for a new trial by both defendants and motion in arrest of judgment by Joseph Gaito were filed, argued before the court en banc, and denied. From the judgments of sentence, defendants have appealed to this Court.
The question raised in the court below on argument of defendants’ motions for a new trial and the motion in arrest of judgment was the sufficiency of the evidence as to the identity of defendant Joseph Gaito. The following excerpts from the opinion of President Judge Clark, for the court below, answer all questions which are properly raised in this Court:
“All of these cases were tried at the same time because of the fact that all of the charges have to do with the same set of circumstances.
“There had been a number of burglaries of homes in the vicinity of Dormont and Mt. Lebanon, in Allegheny County, Pennsylvania, the mode of operation of the burglars had been that they would evidently enter homes where there were no lights and where there was evidence that the parties were away from home. A
“Joe Gaito claimed he was either at his home or at his place of business during the time the burglary took place. In addition to the positive testimony of Officer Scorzafave and the Crime Laboratory testimony, Assistant District Attorney Strauss testified that on an occasion while Frank Gaito was in the hospital lie had admitted to him that he was one of the burglars. . . . [In his] testimony Mr. Strauss states that Frank
“Officer Dennis Timpona testified that Frank Gaito admitted to him that he had been in the home of Officer Scorzafave. . . . The officer testified that Mr. Frank Gaito gave him details of the crime without his asking Mr. Gaito about any of these details. At no time did Joe Gaito make any admission that he was in the home of Officer Scorzafave. When Joe Gaito was arrested and asked where he was on the night the burglary took place he told the Police Officers that he and Frank Gaito were together on that evening, and that they had been out at McKeesport trying to make a trade of an automobile. Mr. Joe Gaito later denied that what he told the Officer was the fact; he did not deny that he made such a statement, he said that he gave the Officers this false story so as to protect Frank if Frank was in some kind of trouble. . . .
“There is no question but what Joe Gaito never did admit to anyone that he was involved in this case. We do, however, have the positive identification of Gregory Scorzafave, Jr., that Joe Gaito was one of the men that was in the house. We cautioned the jury to consider carefully whether or not Officer Scorzafave had sufficient opportunity to observe Joseph Gaito so as to be able to identify him. In addition, of course, to the positive identification of the Officer we have the corroborative testimony of the Crime Laboratory to the effect that Joseph Gaito shortly before his hands were swabbed had in his hands a gun that was recently fired, or that he fired. We also have as corroborative testimony the statement given by Joe Gaito when he was first arrested, in which he placed himself at the time
“We believe that the evidence in this case was sufficient to justify the verdict of the jury. As to the question of. identification, we point out what the Supreme Court has said in the case of Commonwealth v. Kloiber, 378 [Pa.] 412 [106 A. 2d 820]; Commonwealth v. Holden, 390 [Pa.] 221 [134 A. 2d 868]. There the Court states that, where the opportunity for positive identification of a defendant is good [and a] witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains even after cross-examination positive and unqualified, the testimony as to identification need not be received with caution, and may be treated as a statement of fact. . . .”
On these appeals appellants attempt to raise questions concerning the admissibility of evidence and alleged prejudicial remarks of the district attorney. These questions were not properly raised in the court below and will not be considered on appeal. Com. v. Gomori, 192 Pa. Superior Ct. 325, 330, 161 A. 2d 649. We have reviewed the record and find that the evidence was sufficient to support the convictions. Appellants have not shown any error requiring the granting of a new trial.
Judgments of sentence are affirmed.