Commonwealth v. Morrison
43 A.2d 400
Pa. Super. Ct.
1945
Check Treatment

Opinion by

Reno, J.,

Appellant has taken these appeals from the judgments and sentences on verdicts of guilty on two bills of indictment charging sodomy. For obvious reasons, no more of the Commonwealth’s evidence will be here detailed than is necessary to the disposition of the questions raised by the appeals. Its sufficiency to support the verdicts is not challenged by apрellant’s statement of the questions involved in the appeals.

Appellant was the organizer and adult supervisor of а boys’ club known as the Mound Builders, having as its object the collection and study of Indian relics to be found in the vicinity of Erie. One of thе Commonwealth’s witnesses testified that an offense had been committed upon him in appellant’s home, where he said he stayed overnight after the club had met there for an evening session of mounting relies for display. On cross-examination, appellant’s counsel was prevented from asking the witness whether he had helped mount the relies “or were you smoking dope cigarettes and drinking stale cider that you found in the cellar that evening?” The court also excluded a question to the witness whether appellant had not in fact taken him toward his own home that evening but that instead of going home the witness had jumрed out of the car, announcing he was going to sleep with a girl. These questions were found objectionable upon thе authority of Com. v. Payne, 205 Pa. 101, 54 A. 489, and kindred cases which hold that the credibility of a witness may not be assailed by questions which develop instancеs of misconduct unrelated to the issue on trial. This rule is not applicable to the questions propounded by appеllant’s counsel. The questions were related to events ‍​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​​​‌​‌​‌​​‌​‌​​‌​​​‌​‌​‌​‌‌‍upon which the Commonwealth was relying for conviction. The first questiоn was unobjectionable because it was asked for the purpose of attacking the credibility of the witness: by showing that аt the time of the event to which he testified his powers of observation and *369 memory were impaired, so that his recollection and account of the experience might be inaccurate; and the second question was proper because it was intended to contradict the direct testimony of the witness by having him acknowledge that he was not at appellant’s home at the time he had originally alleged one of the offenses to have occurred. However, аppellant was not harmed by the action of the court, and its error was cured by the subsequent course of the trial. The same witness admitted later in the trial, that he had drunk some hard cider at appellant’s home during the evening in question; and he further admitted that he had been taken in the direction of his home by appellant but that he had left the car before arriving there with a remark to the effect that he was going to see a girl; and he also acknowledged that he had not in fact spent that night at appellant’s house as he had previously asserted. Com. v. Danz, 211 Pa. 507, 60 A. 1070; Com. v. Reed, 152 Pa. Superior Ct. 249, 31 A. 2d 595; Com. v. Glickstein, 151 Pa. Superior Ct. 421, 30 A. 2d 147.

Appellant’s objection to the inadequacy оf the charge of the court on the subject of the weight to be given the testimony of accomplices is without merit. One who voluntarily submits to unnatural carnal knowledge is an accomplice within the meaning of the rule requiring special treatmеnt to be given to testimony emanating from such a doubtful source. Com. v. Howe, 84 Pa. Superior Ct. 295; Com. v. Vasilion, 70 Pa. Superior Ct. 174. The evidence was conflicting on the question whether the boys involved participated willingly in the offenses, and ‍​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​​​‌​‌​‌​​‌​‌​​‌​​​‌​‌​‌​‌‌‍consequently it was proper to leave to the jury the determinatiоn of whether they were or were not accomplices. Ettinger v. Com., 98 Pa. 338; Com. v. Brown, 116 Pa. Superior Ct. 1, 175 A. 748. As the conviction rests upon the uncorroborated testimony of the boys, and as it was possible that they were accomplices, it was the duty of the court, even without a specific request to do so, to instruct the jury to scruti* *370 nize tlieir testimony closely and to accept it with caution if it found the witnessеs to have been implicated in the criminal acts. Com. v. Beck, 137 Pa. Superior Ct. 410, 9 A. 2d 175. However, there is no rule of law forbidding a conviction on the uncorroborated evidence of accomplices if it is credible to the finders of fact, ‍​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​​​‌​‌​‌​​‌​‌​​‌​​​‌​‌​‌​‌‌‍and the extent to which a jury shоuld be admonished concerning such testimony is a matter largely within the discretion of the trial court. Com. v. Elliott, 292 Pa. 16, 140 A. 537; Com. v. Chrostowski, 112 Pa. Superior Ct. 466, 171 A. 901; Com. v. Robinson, 148 Pa. Superior Ct. 61, 24 A. 2d 694. Actually, the charge was more, favorable to appellant than it need have been, for the jury was told it could convict if it believed the uncorroborated testimony of the boys to be “absolutely true”, while the burden on the Commonwealth, as in all criminal cases, was mеrely to satisfy the jury of defendant’s guilt, not absolutely, but beyond a reasonable doubt. Com. v. Vasilion, supra.

The remaining complaint embraced within appellant’s statement of questions involved, which limits the scope of our review, Com. v. Attarian, 129 Pa. Superior Ct. 31, 194 A. 776, is that the court below erred in permitting the district attorney to interrupt counsel’s summation to the jury for alleged misquotations of the evidence. The ‍​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​​​‌​‌​‌​​‌​‌​​‌​​​‌​‌​‌​‌‌‍speeches of counsel are subject to the supervision of the trial judge, whose duty it is to confine the arguments within the bounds of legitimate аdvocacy. Com. v. Windish, 176 Pa. 167, 34 A. 1019; Com. v. McMahon, 14 Pa. Superior Ct. 621. When offending remarks are made, there must be an immediate objection followed by a motion to withdraw a juror, and the court’s, action on the motion, after the remarks are placed upon the record at the cоurt’s direction or by affidavit, is subject to review for abuse of discretion, but a party may not sit by passively and invite errors which might readily be corrected if prompt attention were brought to them at the trial and then argue in *371 the appellate courts that he has been prejudiced. Com. v. Mika, 317 Pa. 487, 177 A. 3; Com. v. Ezell, 212 Pa. 293, 61 A. 930; Com. v. Wilcox, 316 Pa. 129, 173 A. 653, affirming, per curiam, 112 Pa. Superior Ct. 240, 170 A. 455. Here no request was made fоr the exercise of the disciplinary powers of the court, but the court on its own motion instructed the jurors to decide the case upon their recollection of the evidence and to resolve conflicts in the testimony for themselvеs. Under the circumstances this admonition was more than adequate. Com. v. Turza, 340 Pa. 128, 16 A. 2d 401; Com. v. Westwood, 324 Pa. 289, 188 A. 304; Com. v. Bubnis, 197 Pa. 542, 47 A. 748.

All assignments of error are overruled; the judgments are аffirmed; and it is ordered that appellant appear in the court below at such time as he may be there called ‍​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​​​‌​‌​‌​​‌​‌​​‌​​​‌​‌​‌​‌‌‍and that he be committed by that court until he shall have complied with his sentence, which had not been served at the time his appeal was made a supersedeas.