*1 ligent might kept speed, road. the car have on the been easily might non-negligent speed, At it a have non-negligent righted after it went off the road. At a speed, likely it would not have taken the course erratic spun it thereafter which back around did—“the wheels it a bank”—before backed across the street into hit the stone wall. or increases the
“Where the actor’s conduct creates particular factor risk of a and is a substantial harm, brought causing that harm is fact that the harm, through does about the intervention of another force except liability, not relieve the actor of where intentionally force or criminal act a tortious person.” (2d), Tentative Torts, third Restatement jury defendant’s If finds that §442B. Draft creating driving negligent in too fast and driver was plain- damage consequent to the the risk of skid and resulting in fact was a blowout tiff’s that there car, from resulted than would have violent skid more much necessity emergency, of sudden- such as a usual more ly applying defendant not relieve the does brakes, liability for result. questions driver to whether the defendant’s as negligent and whether circumstances, under causing negligence factor in was a substantial plaintiffs’ sub- damage should have been car, to the jury. mitted procedendo. a
Order reversed Appellant. Pouls, Commonwealth *2 March Argued 1962. Before P. Rhodes, Er- J., Wright, vin, Woodside, Watkins, Montgomery, JJ. Flood, him
Donald W. Levy, J. Goldberg, Garfield appellant.
Arlen District Attorney, Assistant Specter, Attorney, District him Louis F. Assistant McCabe, and District Attorney, M. First Assistant Paul Chalfin, Com Attorney, District James C. Crumlish, Jr., appellee. monwealth, 1962: June J.,
Opinion Woodside, from the sen- Court to this appeals Pouls Barry Quarter of Phil- Sessions Court of in the imposed tences to commit solicitation charges rape, on the adelphia assault.1 indecent and sodomy in Geraldine Ga- night August 1960, Sunday
aOn to a pub- Kathleen went McGuire, her friend, and lazyk and had a soda with danced There they dance. lic later learned to names they whose “Vic”, and “Bob” never Friedman. had They Sheldon Pouls Barry not introduced. and were before boys seen with them Sheldon’s car to go girls asked boys the invita- accepted The girls to eat. something to get rape including sodomy charge, cases, were All of numbers. Court Sessions given Quarter and tlie four of them left the after eleven
tion, dance they o’clock and to a ate. went restaurant where they Barry When left the and Geraldine restaurant, entered of Sheldon’s door the back seat four sedan. Kathleen sat in the front seat with Sheldon who drove. taking girls directly Instead of drove Sheldon home, development parked building area. into in a dark Barry sug- advances to made Geraldine. At Sheldon’s gestion, directly and he car Kathleen left the and stood Barry of A in front it. few later Geraldine minutes partially the car into left went constructed house. completed front The floor door, Barry fell for him into the cellar. Geraldine waited crawl out of the and then the into cellar, two went They and had house intercourse the floor. returned boys girls and the took car, to Geraldine’s Barry they home. When arrived at home, Geraldine’s her and “We hands with are still friends.” said, shook girls get no made effort to license number although at time Fried- knew Sheldon car, Barry only only “Vic” and “Bob”. man Pouls as as her arrived mother was home, When Geraldine wait- ing then 2 for her. It was Geraldine had o’clock, out after 11:30 o’clock. mother before been Her never questioned immediately and after her, she said she bleeding, thought undressed her and examined she was father and mother then her took to a her. Geraldine’s *4 physician hospital. who examined her was not not what he found. From do know so we called, parents police hospital, took her to the sta- Geraldine’s rape charge descrip- of given was and a filed, where tion boys boys to the detectives. was of the tion police by apprehended two later weeks at the were they picked up where hall Geraldine and dance same promptly Barry admitted that he with was Kathleen. night question during and that he had Geraldine using any but he denied her, force or intercourse sodomy charges. denied the also He threats. undisputed. These all more facts are But there is disputed story, to Geraldine’s and must we view accept light jury’s facts in the verdict. We thus following testimony as true the of Geraldine concern- happened parked housing ing what after at the development: get Cass, “I went to out of the car with my my pocketbook, I for and I had hand and reached getting I door. Cass assumed was out with her, open Harry I door Pouls leaned but when went to going anywhere, that I and he over and said was door. locked the
“He he to kiss me and also said what said wanted play. to he wanted to do—all he said is that he wanted help if and I Friedman he me, asked Sheldon would try him I to tell he ‘No.’ tried to talk to Bob and said, girl Then I not listen. what kind of but he would was, pull I and me down on the when seat, he started to pull myself try door to for the handle of the to reached up up managed pull myself again, I to but he back fighting again pulled I on the seat. was me back down get trying I for Cass him off of me. and to screamed pulled up my help had dress. to me. Then Bob again I did not hear “I but Cass, screamed again, anything, I and or screamed noise outside ‘If trying fight to Bob he said me, I when was still going away, stop your you I am hands don’t take everything you.’ it like said was that, to kill When he prayer stopped moving. I I said a in me going thought to die. Bob said all he wanted I part put private his it . . . After he suck do was stopped body. my body After that he into of his to do it five up, to me that he wanted got he said then he would take me and he home, more minutes long night. drawn-out not it would if said opened and took car door me the hand, “He those unfinished one of houses, went we through something. he fell he Then walked we when *5 600 tip
got lay told . and me to on . . he and floor, pulled up my again got top again dress on of me put private part private body and he of his into the part my body, and it minutes and was about five stopped then he he didn’t to do it he said want he I knew that didn’t then it, want more, up got to the he took me back car.”2 years Barry time At the of this 17 offense, old, was ap- years Barry old. and Geraldine was was When prehended petition hearing a filed held in and a County the Juvenile of the Court of Philadel- Division phia. judge testimony, directed At the close brought him. that Sheldon Friedman be When before developed years old, it then that Sheldon was 19 age beyond the Court thus over which Juvenile had charges jurisdiction, judge suggested of con- brought against spiracy “That and said, Sheldon, indicate matter can determined best be would Quarter Sessions Court to the certification then certified to the Court case was Court.” court- Quarter in the vernacular of the Sessions where, Barry him. had book He was thrown at room, charged rape, with intent to ravish, assault sod- sodomy, omy, commit threats to do bodi- solicitation battery, aggravated ly assault assault and harm, Upon conspiracy. battery, convic- indecent assault rape sodomy, and solicitation commit tion impose judge intended to told defendant he trial imprisonment upon him under of life a sentence January (1951) Act P. L. 8,1952, Barr-Walker receiving pre-sentence After investi- §1166. P.S. report, court sentenced the defendant gation to a 7y2 Penitentiary, years in the Eastern to 20 total rape years pro- years on the and 5 conviction, to 15 7% solicitation at conviction, commence bation paragraph part testimony is from the of this last hearing during in Juvenile Court. G-eraldine *6 expiration rape. of the for sentence Sheldon charged acquitted. Barry conspiracy, had with and was behalf several character witnesses who testified his ju- at the trial. He had and the no criminal record, previously venile court records that he had not show been in court. that spe- appealed alleging defendant to this Court
cific trial errors. these conten- We have examined all they and we have without tions, concluded that are merit. urged gross
We are also the sentence as set aside ly authority to excessive. The Board of Pardons has not commute excessive Court does this sentences, authority propose upon to encroach constitutional Pa. of v. 405 that board. See Smith, Commonwealth appellate (1962). have A. 2d 619 Our courts 456, 176 many court said times that the discretion of the trial imposition sen is to be interfered of a not with statutory v. limits. Commonwealth tence within Superior (1931). Fitzgerald, Pa. Ct. 308 In re 101 appellate recognize iterating this we that rule, authority modify not a sentence are without courts “manifestly excessive inflicts too severe which is punishment.” v. Commonwealth 190 Pa. Su Bilinski, (1959) perior A. 2d 322 407, ; 154 Common 401, Ct. (1932) 161 ; 307 Pa. A. 733 Garramone, 507, wealth v. v. 341 Pa. A. 2d 897 17 Irelan, 43, Commonwealth (1941) 396 Pa. A. Green, Commonwealth ; 137, (1959) Su Commonwealth v. 161 Pa. ; Downer, 2d (1947) perior A. ; 24, 2d 897 Act of June 339, Ct. par. §192. 17 P.S. §8, 8, L. 212, P. 1895, imposition more than an involves ease This of juvenile facing year Here a 20a sentence. excessive year minimum for an offense that sentence 7% disposed ordinarily of in have the Juvenile would light be must examined in sentence This Court. policy concerning expressed Commonwealth disposition against delinquent ju- brought cases veniles. 2,
In of June The Juvenile Court Law enacting P. legislature L. 11 P.S. et 1933, 1433, seq., §243 expressed its belief real interests that “the [delin- incarcerated quent] require children be criminal jails and as members penitentiaries, con- guidance subjected but be to wise class, care, better checked trol that evil tendencies may so Act See Preamble instincts be strengthened.” supra. 1933, had Legislature Pennsylvania as early
As “between institution separate boys provided *7 have to and not known twenty-five of fifteen ages state or a penitentiary sentenced to been previously 61 P.S. §8; P. L. 63, §482. Act of June prison.” 8, 1881, ter- and oyer of sessions quarter The courts Law, Court of The Juvenile directed, by miner are §14 court juvenile transfer to the 11 to §256, P.S. supra, he was committed when a juvenile against case any of discretion are the given of age, under 16 years com- against juvenile cases transferring or retaining and under age of or over 16 years he is mitted when of age. 18 years courts are not vested juvenile that the recognize
We delinquent over jurisdiction exclusive sole with in Court addition the Law, Juvenile juveniles. the from the of exempts jurisdiction provision, above in of murder. charge Furthermore, court juvenile of Court the Juvenile Act constitutional declaring Supreme the Court said that L. 274, P. 1903, April 23, minor public require that a of “If the welfare it is taken try away power tried, be should .. .” Commonwealth sessions quarter of court A. 62 198 (1905). The courts 53, 54, 48, Pa. 213 Fisher, and terminer pow- have the oyer session of quarter of 14 if years over the welfare age, juveniles try toer
603 of the de public If been requires juvenile it. has clared delinquent court processes juvenile if have tried or of without beneficial results, fense with juvenile which a is of unusual charged if peculiar or there some circumstances are magnitude, inadequacies in processes ju which suggest public require venile dis may welfare court, or position the case the courts sessions quarter Commonwealth v. terminer. oyer Krynicky, Superior ; Trignani’s Pa. Ct. A. 2d 37 (1946) A. Superior 150 Pa. Ct. 2d Case, 491, 493, §18, (1942) ; The Juvenile Court Law 1933, supra, 11 P.S. §260. appears
It that case was transferred criminal for trial the Juvenile primarily courts could not Court that whose violation Sheldon, thought Barry. heard in that should be tried with court, when offense was The defendant was a juvenile repu- that he had a good committed. There was evidence never been either court or juvenile tation. He had to this offense. minimiz- prior court Without criminal appellant’s serious nature of we offense, ing the fact the criminal are overlook dockets cannot committed more mature rapes filled with records determined with more records, who, criminal men, *8 much force. greater used victim, by resistance but can reprehensible, conduct he defendant’s as one of the most rapists vicious be classified hardly to the law. known disposed in have Juvenile could case
This should have been. probably However, Court, in discretion transferring have broad cases below courts courts and the criminal courts. juvenile between of that abuse we discretion, shall not for gross Except appears which to have been transfer war- a aside set court ordered it. time at the ranted when But, there which is serious doubt as to permit ju- court jurisdiction, should take we cannot completely venile to suffer a sentence so severe that it ignores both the circumstances the offense and the policy juvenile relating of the Commonwealth of- impose upon juvenile fenders. To this first offender rape penitentiary permitted the maximum sentence for (except the life sentence authorized Barr- under the supra) manifestly Walker is Act, so excessive that it must be set aside. The maximum can sentence which justly imposed upon juvenile is a sentence to Camp the State Correctional Institution at for- Hill, merly Pennsylvania Industrial School. judgment of sentences is set aside and the case resentencing
remanded for not inconsistent with this opinion. grant would a new trial. J.,
Wright, J.: Opinion by Concurring Montgomery, myself conflicting feelings find I in serious I this case. On the one fail to hand, see merit plea appellant’s for a new trial. The reference to the justify Elmo Smith case does and the evidence one, to sustain the convictions. On other sufficient appeal help sympathetic I to his am hand, grossly of his which is sentence, the effect excessive appel- light age facts of the case, prior record of conduct. his lant, always Although I am reluctant to interfere with judge, particularly of discretion trial the exercise sentencing one matter of convicted of I in the crime, do this case. so constrained am authority of on the Therefore, Commonwealth v. A. 2d 241, 137, Pa. Commonwealth Green, Superior Ct. Pa. 154 A. 401, 2d I Bilinski,
605' resen- court for would remand case the to lower tencing.
Dissenting by Opinion J.: Ervin, of sentence Barry Pouls appeals judgments of after charges a verdict of on the guilty by jury as- indecent rape, solicitation to commit sodomy sault. prosecu- old the 19-year
Geraldine Galazyk, girl, that friend the name trix, girl testified by she Phila- City Kathleen to the McGuire went a dance the danced several delphia; that during evening Sheldon friend, times with the defendant and his go to girls two the Friedman; that invited boys accom- eat; girls out and have to that something that Friedman; car driven in a panied boys to in the eat car something they got after having their were driven toward believed they being girls uncompleted the car driven to an instead was homes; Friedman it that stopped; where was project, building out the car; prose- McGuire get directed Miss McGuire not to leave her and Fried- Miss cutrix asked hand led her car; out her by man took the car but stopped leave was sought that prosecutrix ad- appellant began that indecent appellant; by the resisted screamed; who prosecutrix, toward vances threatened her and accom- finally defendant whereupon that rape; there- defendant sodomy both plished dwellings to one the unfinished prosecutrix led after compelled prosecutrix to submit he more once where driven girls were to the home of intercourse; that a.m.; 1:30 the prosecu- at about prosecutrix her mother told immediately occurrence. trix prosecutrix informed were police and she once was examined at in the hospital ato taken The appellant Marcello. admitted Dr. aby hospital *10 intercourse but said it was with Geraldine’s consent. only The real issue in the case was whether the ad- mitted intercourse was with Geraldine’s or consent was against question jury her will. This was a for the girl. believed the
In his motion for a trial new the the defendant in argued only judge court below the refusal of the trial juror prosecutrix to withdraw a when her- the likened “Mary self to victim in Elmo Mitchell,” the notorious During Smith murder case. of the cross-examination prosecutrix developed the it was that when she and de- fendant entered the unfinished house defendant fell through proceed- the floor. The cross-examination then long “Q. ed as follows: him How did it take climb might long Q. out? A. A few seconds. It have been as doing you Q. as a few minutes? A. Yes. What were Q. this A. I time? stood there. You stood there and you Why him Q. watched climb A. out? Yes. didn’t away? run I A. Because was terrified I was so up Mary I afraid would wind like I ran. Mitchell if you your Q. remaining you Weren’t afraid of life in as Following A. I testified before? was.” refer- Yes, for ence counsel the defendant moved for the with- juror. of a motion drawal was at which denied, the court said: motion time “The is denied I prejudicial only nothing watching heard but I was jury during of the reaction entire cross-exami- of nation and when witness, she testified in that sign recognition respect, given I and noticed no of jurors particular pori by any to that ion of the prejudice testimony. I am sure no will result. Your exception.” you have an motion is denied, This was by outburst not an emotional victim. It re- was a question propounded sponsive reply to a counsel for really counsel defendant. What defendant prosecutrix’s the state of the to know was mind. wanted proper entirely gave reply him inf or- was permitted mation which he He not be sought. should complain. Com. 312 Pa. A. Duca, v. 825. in Com. v. Ct.
What said 98 Pa. Jerko, Superior is “The 34, 39, apropos: disposition question, juror whether a be withdrawn for should causes of character consideration under one for largely appellate trial judge discretion and the courts error: Com. will reverse cases manifest only Superior 32 Pa. Ct. 82.” Striepeke, After record I a consideration the entire am *11 influenced opinion jurors unduly that were not given the defendant account of the against reply It that the witness prosecutrix. worthy of note correct the victim in did not even recall the name of In has Smith case. that case the name never Elmo “Mary but or “Mary” always “Maryann” written as Ann.” has points, raised two other appellant
Counsel need considered which not be were Su Pa. in the court below: Com. v. 174 DiCarlo, raised 2d given A. I have, however, Ct. 101 410. perior 611, convinced of these and am points to both consideration be court neither the reversal one warrants I do of the court was severe, While the sentence low. the discretion interfere with that we should not believe v. Burke, Townsend judge. trial by the exercised 1693; Ed. Ct. L. 1690, 68 S. 1252, S. 736, 741, U. Ct. Pa. Superior Martin, ex rel. Dempsey Com. 2dA. 430. of sentence. judgments affirm the I would opinion. dissenting P. joins Bhodes, J.,