*1 Appellant. v. Kloiber, *2 1954. Argued April Before C. J., Stern, Stearn®, Jones, Musmanno and Ar- Bell, Chidsey, JJ. nold, for Theodore R. him
Everett with Kent, Gardner, appellants. Joseph,
George Assistant Attor- First District J. Attorney, Morgan, ney, M. District him Jack . appellee.
Opinion June by 1954: Justice Mr. Bell, &R F the office men Two armed entered Company Pa., Street, Allentown, at Dress Gordon February approximately p.m. on at o’clock 12:35 bookkeeper president, up company’s held payroll, escaped sedan black seized cash being waiting driven car for them and was which was person. a third *3 Stephen were and Kloiber, defendant, Senkovich alleged armed and Wil- to have been the two robbers getaway liam the driver of the car. Senkovich Kloiber signed Stephen being gave and after Kloiber, arrested, police Pennsylvania admitting state confessions to participation robbery; in and also their Senkovich get- implicated as the driver of the William Kloiber away pleaded guilty car. and sentenced Senkovich was by the Court.
Stephen sepa- and Kloiber William Kloiber were rately together. the trial of indicted but were tried At president bookkeeper were this case the and who Stephen up, positively one held identified Kloiber as they although .had failed to do so robbers,- two. previous William Kloiber did not on two occasions. niak-e take the witness stand. Senko- confession n repudiated vich at the trial of these defendants his and he was other written confession testified with two (cid:127) (cid:127) named-Kelly-and Crawford.- men John - Stephen and William were convictéd and from the
judgment-and Quarter of the-Court Ses- sentence Superior con- they appealed Their Court. to the sions and this by Court viction sustained allocatur. Court allowed an allege in their trial,
Defendants numerous errors several we shall discuss. which complaint erred Court is that
Defendants’ first Stephen separate refusing request trials. in their separately in- each Kloiber William Kloiber were and Stephen against The count dicted five counts. first against robbery; Wil- the first count was one of armed robbery accomplice; the other liam was one of with charging robbery, intent four assault with counts, larceny goods, receiving identi- were stolen rob, participating charged in the cal. Both men were with robbery at the time, same same crimes same participating separate in and distinct its offenses. The Commonwealth called witnesses testimony exceptions, case in chief and with several all as to both witnesses was material and relevant defendants. position Judge
The trial and for because of given other obvious reasons has been a discretion indictment determine whether a number of bills of together, ex should be consolidated and tried and his ercise of matters will not be re discretion such appellate an Court unless been versed there has joint manifest abuse discretion or a trial is so un *4 of ¿nd unjust clearly prejudicial fair as to be or one Especially joint per more of the defendants.- is trial charged if not when the crimes missible, advisable, grew out of the same acts-and much the same of evi necessary applicable is or dence to both defendants: Mulroy, Com. Com. 123 A. Com. v. Valotta, Superior Ct. 2d 526.
Quinn,
400, 405,
pre-
or
abuse of discretion
There
no manifest
was
together
trying
judicial
defendants
these two
error
indictments.
on all of
aforesaid
in the
allege
of errors
a number
also
Defendants
rulings
The first error
the Court.
of
and in
following por-
alleged
in the
that the Court erred
that
charge:
case
in this
“. . . it is admitted
tions
itsof
part
dress
people
in the
were
took
who
at least two
goods plant,
contradiction
no
and then there is
party
in an automobile.
who was
there was a third
Kloiber
about William
.
I think there
no doubt
.
.
Michael
having
Star Hotel with
the Silver
been at
subsequently
morning.”
left
The Court
Senkovich
and said
all the facts
to the
the determination
opinion
the evi-
their
and
their recollection
they
right
prevailed;
to de-
had the
and
dence which
questions
in the case.
involved
all the facts and
cide
excerpts from
in these
error
no
There
reversible
ample
rea
charge,
and
evidence
since there was
they
and
ground
statements
the Court’s
for
sonable
statements
contend,
as defendants
did not constitute,
principle
v. Cham
of Commonwealth
of fact within the
In that ease the Court
A. 2d 201.
bers,
province
164)
of the
(page
: “It is the exclusive
said
infer
jury,
to decide all
facts,
not the court,
credibility
and
the witnesses
therefrom,
ences
given
weight
the testi
to all of
effect to be
and
judge-
state
mony.
purpose of a
is to
While the main-
briefly
explain
law,
evidence,
review
the-
duty
a sometimes the
always-the privilege-and
it-is-
including
judge
opinion,
his
express his own-
-to
trial
opinion
the -evidence
its
weight
effect of
of the
and-
or
guilt
strength
points
even the
weakness or
which,
and the verdict
the defendant
innocence of
provided (1)
jury-
judgment,;
render,
should
may
ground
he
statement
is reasonable
there
*5
417
the right
to the jury
leaves
clearly
and
lie
make;
(2)
involved
every question
to decide all the facts and
there-
court
any opinion
the case, regardless
not to draw specifically, person. put concerning To that it inference testify this That Kloiber not to in case. William chose he privilege, fact that and the his constitutional was you right give right to draw that not exercised does any him in this adverse to inference that could be very proper certainly fair and state- case.” That was ment of the law. charge is accurate
If the
read as whole
Court’s
prejudicial
error,
and fair and contains no basic or
excerpts
though
taken
will be sustained even
isolated
objectionable:
might
Common
therefrom are
be
or
Donough,
Pa.
A. 2d
Com
wealth v.
377
103
46, 53,
694;
865;
monwealth v.
''So, Common- is wealth uncontradicted is harmless: Com. Chick- v. Superior 251 Pa. Com.
erella, 160; v. 34 Pa. Martin, Superior Ct. Com. 451; v. 78 Pa. Rizzo, Ct. To 163. go constitute the remark must error, indicat- further, ing duty testify, permitting of the defendant an unfavorable inference to be drawn from his failure to do so: Com. Foley, v. 233 Pa. Green, Com. Superior 24 Pa. Ct. 414. . . .”
In supra, 251 Chickerella, Pa., the defendant’s conviction of murder the first de gree penalty the of death was sustained even though charged jury: Court the the “There has been dispute no the say, as to that is to facts; the defense testimony has not made denial of the as offered by the Commonwealth.” Superior
In Commonwealth v. 158 Pa. Schuster, Ct. (pages 168-169) Court said : 420
“ Only is ‘. . . the defendant, Vincent J. Schnster, charged in this and Vincent J. Schuster indictment, appear The not as a did witness his own behalf.’ prohibit the fact not reference to statute does mere has taken Com. that a defendant the witness stand, 115 A. Yollin, Com. v. v. Nelson, 144 Superior prohibition A. is Pa. Ct. against part comments on the of the court adverse prosecutor. Com. v. Chickerella, Superior con ‘To Ct. 451. Martin, 129; Com. go indicating a remark must stitute error, further, testify, permitting duty an un defendant to do drawn from failure to to be favorable inference A. Com. v. 291, [82 Green, 250]; so: Com. v. Foley, Com. v. 414’; Thomas, We court 667. are convinced the Pa. 137, 141, drew reference, intended no adverse portion result of the no unfavorable conclusions, impugned.” charge here supra, Mat- In Commonwealth Nelson, Pa., man- indicted for convicted of murder, tie Nelson, following portion slaughter. The held Court Day transgress rule: “Frank did not story.. she She alive; He not here to tell his (cid:127)dead. *8 here on trial.” Holley, supra, con- a In Commonwealth v. 358 Pa., degree penalty in first the of murder viction though Judge point- trial even the affirmed, was death killing the defendant’s version of that the ed out given This stand. Court said from witness not 301) “Appellant’s (pages : contention that 300, adversely commented on fact below court contrary testify appellant on failed to his own behalf, May P. L. Section PS 158, the Act of to . . . Beference to the failure of de- untenable. testify re- to behalf, his own constitute fendant to jury’s attention versible must call the error, must rea fact the defendant has not testified and sonably lead an inference that he have taken would guilty: if not Cf. stand Commonwealth v. Zukov sky, 324
Thomas, Foley, Appellant’s rights Ct. 414. were adequately protected by judge the trial he said: when testify ‘He does not have take the stand to on his if own behalf he does not want and the fact that to, guilt he does not is not to be taken as an admission of ” any particular degree of crime.’ light In the of these authorities we find no reversi- point. ble error in the of the Court on this We Judge are convinced that the trial did intention- not, ally adversely refer fail- otherwise, to defendant’s testify jury ure to and that the would been have drawing warranted in an adverse inference from this charge. cautioning we cannot However, refrain from against any charge, the lower Courts statement or entirety in portions, either its inor isolated which permits to draw an unfavorable inference against testify. from defendant his failure to allege
Defendants reversible error in the Court’s following point charge: you refusal If “8. find the written statement of Defendant was coerced any way you reject in or is then must untruthful, entirely your in consideration of the case. Persons do way not react the in same identical situations. Where impulsive quick one is emotional, to assert his may rights, easily another be timid es- cowed, pecially presence in of the officers of The law. considering any rule as to reasonable inference re- only average flects the manner which the man is apt to conduct himself in such a circumstance. There people though guiltless aim wrong-doing, some who, *9 policemen deep processes of fear have seated you con- are would take into so those facts which law, you determining sideration in whether would believe KLOIBER co- that the statement of STEPHEN was any way, consequently, untruthful and erced in voluntarily Refused.” not made. charge jury adequate under
The
to the
was
Court’s
pre
point
this case and the
circumstances of
charge
point
properly
Where a
sented
refused.
was
good
is
bound
law and bad law a Court
not
contains
good
point
separating
from
remold the
portion of
from
that
affirm
chaff,
the wheat
bad,
point
the law:
an accurate statement of
which
v.
129,
Commonwealth Wilcox,
Girardot,
presented
point: “If
If
had
362.
defendant
you
co
the written statement of defendant was
find
you
reject
entirely
any way,
it
then
erced
must
your
the case”—that
been
would have
consideration
of the
and would have had
an accurate statement
laAV,
Judge
trial
unless
had al
to be affirmed
he
jury:
ready adequately
it in his
to the
covered
Commonwealth Simmons,
Pennsylvania,
S.
Turner v.
338 U.
Common
it
wealth v. finds the Avritten that if state laAV parts of it or some Avasuntruth ment of the defendant entirely. reject it ful must supra, Donough,
In Commonwealth Pa. 46, 50) (page Ho- “In : said Ave meyer, A. 2d the defense where 153) (page : ‘Defendant, said the Court suicide, assumption proceeds defendants, like most you his statements [or none] all must believe jury can erroneous; course, confessions; *10 part defendant’s state- all or of or none of a believe ” testimony.’ confessions ments, alleged of the refusal The next error is Court’s testimony following point charge: is “No class for of upon than that more uncertain and less to he relied upon identity great it as to doubt is cast where and, jury by it submitted to witnesses themselves, testimony great in creates with and if such caution, identity your as to the mind a reasonable doubt yonr guilty.” mnst be not verdict defendant, identity fairly adequately question The and charge, in consumed covered the Court’s which two jury’s pages point. atten on this The Court called bookkeeper president tion to the failure of the prior company identify the dress defendants on two positive occasions in contrast their identification with jury that there of defendants at and told trial, can be made insofar identification testi mistakes mony accept and that the must such concerned, might testimony caution. We defendants’ dismiss objection point by following quotation from on this 97 A. 2d Smith, 236, points requests “All in 25: of the out set these had elaborately by general been considered the court in its charge repeat in there was no error its refusal to them: Com. v. 147 A. Com. Weston, But Zietz, 282.” we think to the fairness defendants as well as the Bench and specifically point (a) rule we should on this be Bar, part quotation cause the italicised is an exact House,* from Commonwealth 223 Pa. 487, Sharpe, and Commonwealth from Commonwealth v. House has nevar been quotation *This repeated by Court, although tiiis it has' been reiterated Su ........................ Court, perior dif- 120, because loose and (b)
ferent subject statements have been made on the identity. We such is too generalization believe broad statement of the or rule of law general principle subject this and a trial should so Judge the jury.
Where
identification
opportunity
positive
and the
good
witness is
his identification
positive
*11
failure
and his identification is not weakened by prior
to
but
after
identify,
cross-examination,
even
remains,
identifi-
positive
testimony
the
as to
unqualified,
cation need
caution —indeed the
not be received with
say
[positive]
identity
cases
that “his
as to
testimony
be treated as the
of a fact”: Common-
may
statement
wealth v.
Pa.
Ct.
54 A.
161
Ricci,
Superior
193, 195,
2d
138
Ct.
Pa.
51;
Sharpe,
Superior
un-
It is well to recall that necessary may is not witness defendant be and of —a entirely ten has been convicted where the evidence identity. *12 circumstantial and there is no of evidence Lowry (driver getaway See: Commonwealth v. of a car), 374 Pa. 98 A. 2d Commonwealth 594, 600, 733; Homeyer, v. 373 Pa. Commonwealth 743; 150, v. 211 A. 60 Commonwealth v. Dans, 1070; 507, 61 A. 309. 360 Pa. 2d Wentzel, together It that a weak identification,* follows may in the to with other evidence be sufficient case, guilt beyond a the defendant’s a rea convince credibility doubt—the of the sonable witnesses weight given their to be identification under is, proper exclusively instructions from the Court,
* gone admitting quali How far have the Courts weak or contradictory identity apparent fied or evidence of from Com Ronello, monwealth v. 826; Commonwealth v. 251 Pa. 96 A. Fink, Superior 93 Pa. 57.
426
jury.
89 v. Commonwealth supra; 96 v. Commomoealth Ronello, Ct., A. 826. against contends the evidence
William Kloiher
being
must
him
Commonwealth
circumstantial
prove
as
character
circumstances of such a
facts and
certainty.
guilt
prove
Of course
his
a moral
may
clearly
on circum
a
convicted
that man
be
settled
guilt
proved
provided
stantial evidence alone,
Lowry,
beyond
v.
Commonwealth
doubt:
reasonable
Homeyer,
supra;
v.
373 Pa.,
Commonwealth
374 Pa.,
supra;
supra;
v.
Com
Danz,
Commonwealth
Pa.,
supra.
monwealth Wentzel,
Pa.,
say
which
there are a number
cases
However,
circum
[on
“In
to warrant
conviction
order
proved
the facts and circumstances
evidence]
stantial
produce moral cer
of such character
must be
beyond any
tainty
guilt
reason
of the accused
of the
v. Libonati,
Commonwealth
doubt,
able
—”:
2d
v. Linkowski,
31 A.
Commonwealth
Wentzel,
supra.
“moral certain
the words
The inclusion of
Pa.,
severely
by Wigmore,
ty”
Trickett
been
criticized
has
Court.*
our own
§2497,
Wigmore
(3rd
1940),
pp.
(Measure
Ed.
316-320
*9
Jury’s
beyond
Doubt;
Persuasion;
a Reasonable
Rule for
Proof
May:
Cases).
Rules
Chief Justice
“Some
of Evidence: Rea
Criminal
(American
Rev.,
Law
Doubt
Civil and Criminal Cases”.
sonable
X, 642).
“Preponderance
Evidence,
Dean'
and Rea
Trickett:
(The Eorum,.
Law, X, 76).
School
Doubt”
Dickinson
sonable
op.- cit.,
320-324;
Wigmore,
pp.
Hopt
quoted in
Both articles
430, 440;
Utah,
Wentzel,
Pa., supra,
S.
U.
*13
dissenting
opinion by
page
Maxey,
Common
Chief Justice
Bausewine,
Pa., supra;
Koski,
wealth v.
354
State
Va.W.
Bolt,
375, 387,
S.E.
101. Cf. Commonwealth v.
350 Pa.
In Bausewine, later Chief said Justice, Justice Mr. Drew, , (page 41) proved : The and facts circumstances in to order warrant a be such as to must, conviction, guilt necessarily establish the of the defendant, beyond absolutely certainty, being a moral nor in as compatible beyond but at least innocence, doubt, in reasonable The circumstantial this evidence reasonably naturally justify case is ‘as not such and guilt an of the . inference of the . . and accused, quality presump such volume and to overcome the satisfy jury tion of innocence and of the accused’s guilt beyond a reasonable doubt’: Commonwealth v. Superior Com Marino, 16 A. 2d monwealth Libonati, 504, 508, ." 387. . Holt, opinion
We are of the that the of the words use certainty” befog jury “moral serves to confuse enlightening aiding determining instead of in them whether the them Commonwealth has convinced of the guilt beyond defendant reasonable doubt,* the future it be would wiser if the did certainty”. not contain reference “moral In objections instant case defendants’ merit are without Judge charged because the trial more favor ably necessary. to the defendants than was agree testimony
We with the Court lower that the amply prove guilt sufficient defend- of both ants.
We have considered all the other
contentions
unnecessary.
defendants but deem further discussion
judgments
The
entered in the Court below which
Superior
were affirmed
Court and the Order of
Court are all affirmed.
*
recently
“Reasonable
doubt” has been
defined
Common
Donough,
46, 51-52,
wealth v.
Opinion Mr. Justice Musmanno, Dissenting In Part: Opinion Majority I can be but I concur the citing something with about its than enthusiastic less quotation v. Bause- approval from Commonwealth the (later Chief which Justice wine, Justice) Drew proved “The facts and circumstances said: to such as a be conviction, in order to warrant must, necessarily guilt of the not defendant, the establish absolutely being certainty, in- beyond a moral nor beyond compatible at his but least innocence, with a agree not at all with In I do reasonable doubt.” fact, by con- that a Chief Justice Drew made the statement proper though ab- the evidence is not even viction solutely incompatible with innocence. happens that all
What to time-honored rule if a resolved in of accused doubts are to be favor guilty of it is to return a when is allowed verdict morally guilt of certain the defendant’s Although incompatible innocence? evidence not with juror good can conscience return a of with verdict guilty guilt where he is convinced of defendant’s beyond doubt that does not amount to reasonable sleep mathematical I doubt that he can certitude, by easily nights if his he sends vote a defendant to prison or to his death when he a moral in- entertains guilt. certainty as to his Court has often said:
This “When a sought to be sustained crime circumstantial evi hypothesis guilt should from dence, flow proved, and circumstances and be facts consistent with them all. The evidence must be such as to exclude certainty every hypothesis a moral hut that of imputed; guilt the facts and circum offense only point be must not consistent stances with and guilt bub must be inconsistent accused, they * innocence.” supplied.) (Emphasis Has the decided Supreme Pennsylvania Court of this jettison universal time-honored rule which has been the lifeboat an many innocent saving person *15 from a sea of circumstance seemingly incriminating would Moral engulfed which otherwise have him? cer- tainty means Once al- being honest with oneself. we low when jurors convictions are not cer- honestly beneath guilt tain hole accused, line been water has driven into the of criminal ship To law. that a say disgrace blast into de- may fendant while doubt beclouds the mind and uncertainty the heart is to upsets batter down one of the stoutest erected pillars temple justice protect innocent as guilty. well convict
I concur in the results this case but dissent from that moral certainty view which holds ais jurisprudence dead letter in the the lives and affecting of those accused of crime. liberties * Holt, 375, 397; Commonwealth Commonwealth v.
Bardolph, 513, Benz, 318 472. Appellant, ex rel. Tanner,
Claudy.