*1 Appellant. Commonwealth Truitt, *2 Argued November Before Drew, C. J., and JJ. Stern, Stearne, Ladner Bell, Chidsey, Earle I. Harry R. Jackson with them Glick, Joseph Bonidy, appellants. Joseph Attorney, and
L. Alexander District Sculco, appel Loughran, Attorney, for M. Assistant District lee. De-
Opinion Mr. Allen M. Stearne, Justice cember 1951: af- Court from the allocatur is Quar- Court of
firmed and sentences of the convictions County. ter Sessions of Westmoreland Peay, Harry F. Lester W. John Jr., Allen, Truitt, (1) charged Tarpley indicted Charles B. attempting make an ar- officer in an obstructing beating assaulting (2) officer. The rest, jury guilty ex- found all of the defendants each, (whose cept Tarpley deferred sentence was because illness) year Allegheny to one was sentenced *3 County Workhouse. The same four defendants were (1) charged battery, and also indicted with assault and battery (2) upon person aggravated the assault Captain of of Police the John who was Bordonaro, County. They Kensington, City of Westmoreland New by guilty jury, the all found as indicted, were Allegheny except Tarpley, to the was sentenced each, years. County Robert T. Smith for three Workhouse Tarpley affray, indicted for also and Charles were guilty. on this con- was sentenced found Smith were than one and one-half for a term of not less viction years. appeals years, than three The are and not more by Peay, and Smith. Truitt, Allen, sufficiency question
Appellants the of the do not appeals Their relate to verdicts. sustain evidence grant a to new trial. of the court below refusal upon (1) presented ad- questions are based The concerning prejudicial allegedly evidence mission and activities Truitt and connections communistic judge charge (2) on of the trial failure Smith; immunity right of from search constitutional Truitt’s by seizure officer ar- make an attempting rest without a warrant Truitt’s the re- (3) home; fusal motion for of counsel appellants with- a juror draw when it the trial was shown during a had juror woman home day driven the preceding by the alderman before whom the defendants’ prelim- inary was held. hearing Ken- Eagle store New Clothing Company because of a
sington being picketed against strike York a Ellay Company New wholesale City, clothing Ellay company. Employes represented local 65 of the Wholesale and Warehouse Workers Union. No dispute labor existed Eagle’s employes. Defendant who was Local Smith, not member was sent that Union from York to New Ken- New In sington as strike leader. he hired de- Pittsburgh Tarpley fendants and also other Peay male and female pickets. Defendant Truitt is a dental technician, whose office and are near apartment Eagle store. Local Officials of 65 had directed Smith contact All Truitt. used pickets, including defendants, Truitt’s office and apartment their con- personal venience. March Saturday night
On at about 8:30, in front of the picketed the center of store, town, at the of the height town’s shopping hours, customer John Eagle store, was, according the tes- Fee, timony produced by attacked and *4 Commonwealth, beaten and by Smith other pickets while he was leav- after ing having purchase. store made All of de- A fendants were involved. friend Fee came to his A rescue. in general fight fray which ensued, many A crowd Police people engaged. large gathered. rushed to the scene. Police Bordonaro Captain observed Smith Smith running away. by was followed and Captain seen entering defendant apartment was Truitt’s the rear entrance. through immediately happened
What thereafter summa Judge opinion: rized his “Bor President Rhodes procure donaro returned the scene the assistance up of another Thereafter he the front officer. went office on floor of the the second stairs Truitt’s building other rear en while the officer watched the Peay met com trance. Bordonaro and Truitt, Allen, ing steps. demanded that down He Truitt surrender told that there no one Smith but Truitt was apartment to Truitt’s there. Bordonaro went on As floor in came his search Smith. he down third Peay on Bordonaro met and the second Truitt, Allen, again landing. floor Bordonaro demanded that Truitt According re Truitt surrender Smith. Bordonaro, got plied: ‘Get here. ain’t no business out of You any Peay, getting Truitt, Allen, here. You fellow.’ ain’t Tarpley him the officer. Someone hit attacked telephone. attempted Truitt to use the back as he forcibly the tele removed hold Bordonaro took doing phone In arm from Bordonaro’s so, hands. severely injured. Truitt door hit'the and his wrist was laugh; thereupon ‘Don’t Bordonaro: make me said to Peay anyhow.’ you’re taking out of here that fellow ripped grabbed his coat. Bordonaro Bordonaro Peay they Allen, then informed Truitt, Peay getting Allen he succeeded under arrest; police. to other were turned over downstairs where apartment. He was later arrest to his Truitt returned by other officers.” ed particulars, contradicted vari- some
Defendants, wit- of some Commonwealth’s ous statements upon battery relating assault and to the nesses Captain in the and to the obstruction arrests. Police Captain’s painful sought They Police minimize the mauling clothing, he injuries, and the torn subjected. features, in essential However, *5 charges amply sufficiently in the indictments were and established. complaint
The chief of defendants is court refusing grant in below erred trial new because injection incompetent into the ir- case testimony concerning' relevant communist connections and activities of defendant Truitt and Smith. It is charged nothing that this is a collateral and had issue, charged to do with the crimes for which defendants permitted and should not indicted, have in that the record; effect such infer- innuendoes, unsupported ences and irrelevant accusations created prejudice antagonism against in the defendants jury. minds of the judge charge stage
The trial
in his
“At this
said:
say
you
I
being
want to
men
not
these
are
being
your duty
tried for
It
mine
communists.
regardless
and that of the
of what
Commonwealth,
we
may
give
just
think of their
a fair and a
them
beliefs,
under the
trial,
laws
the United States and the Com-
Pennsylvania,
doing
you
monwealth of
and in
that,
testimony
entirety
are° to take
its
and decide
fairly
reasonably
guilty
men are
whether these
committing
affray
battery
an
and an
assault and
guilty
resisting
whether or
are
officer,
obstructing
process.”
him the service of
that even if such tes-
Commonwealth contends
timony
unsupported nevertheless,
irrelevant,
experienced
defendants’ able and
counsel
ob-
without
jection
given.
permitted
testimony
be
The Su-
such
perior
that the
Court
such
decided,
circumstances,
Judge
properly
admitted. President
try
“Appellants
case
their
said:
elected
Bhodes
say
injected
cannot
into
and we
it,
communist
the
they
issue
doing
purpose
in-
did
so.
not have
Evidence
objection,
es-
without
Commonwealth,
troduced
picketing
conducted the
Local
tablished that
*6
at
New
communist domi-
Kensington
was
store,
nated and
been
out of the C. I. O. for that
had
thrown
reason. The
of Truitt and Smith
cross-examination
as
to
Local
their connection
the character of
65 and
with
it
and
proper.
was
without
Truitt
Likewise,
objection,
Smith
cross-examined
were
as
whether
were
or had
any
party.
Communists
affiliations with
Smith had
hired
Local 65
by
picket captain;
as
he
on behalf of
brought
pickets
Kensington
to New
and he met Truitt
the same
organization,
day.
Truitt
of Local
contacted
65,
the officers
was
knew
its
York
from
relative to
organizer
picket-
New
met
issue and
ing. Appellants
subsidiary
present-
this
of Com-
testimony
ed
contradiction of the
testimony
It
rebuttal
was relevant
monwealth’s
witness Cvetic.
the circum-
fully
for the
to disclose
Commonwealth
the commission
crimes with
stances surrounding
and on
It
per-
trial.
was
charged
which
appellants
Truitt’s rela-
missible for the Commonwealth to show
with
pickets generally
tions with Smith
Truitt
Local 65.
had a
on whether
bearing
This evidence
“the
sought by
harbored Smith at the time Smith'was
commit
the of-
and as to
Truitt did
whether
police,
an officer.
assaulting
arrest
resisting
fenses
character of Lo-
the communistic
testimony
The
as to
connections and activities
cal 65 and the communistic
the appel-
to an issue
which
relates
appellants
to com-
The
as
tacitly acquiesced.
lants had
evidence
all
which
munism
in the case for
purposes
in-
Cvetic’s
and this
relevant,
applies
See Com.
in rebuttal.
the Commonwealth
troduced by
With we are unable to through unsup be established inference or innuendo, ported Schlesinger irrelevant accusations: Petition, A. 2d Serbian Milasinovich The 316; *7 Progressive 369 Pa. A. Club, Inc., 2d 571. True Eagle manager permitted testify Store with was objection out that Local Union 65 was out of “thrown they C. I. O. because are communist dominated”. unsupported, by obviously Such a an incom statement, petent hearsay. possesses probative It witness, is but nó or relevant value whatsoever. Whether Local inis fact communist dominated a collateral was, therefore, issue this case. objection,
Defendant
without
was cross-ex-
Truitt,
concerning
membership
Progressive
amined
in the
Party,
political party
and whether or not such
was
by
again,
“dominated
Here
communists”.
such testi-
mony
slightest probative
was without the
or relevant
been,
objected
ought
If
had
value.
to it
to have
excluded.
Smith
Defendant
cross-examined
was
about
although
the communist influence in Local No.
he
questioned
not a member of it.
was
Smith
also
was
whether or not certain named
officers
the Union had
Congress
been cited
“for
United States
commu-
objected
nistic
Counsel for defendant then
activities”.
“By
following language:
McKague:
if
Mr.
Now
please, something
me
is
time to
the court
tells
Loughran
object
going
to this
into
stuff that Mr.
inject
into this case for the
trying
purpose
objection
these defendants.” The
prejudicing
was over-
concerning
ruled and
proceeded
the cross-examination
and of the
of Local 65
witness.
communist activities
denied that
Both
Truitt and Smith
defendants
of-
In
the Commonwealth
communists.
rebuttal
him-
styled
fered the
of Matt
testimony
Cvetic, who
Bureau of
self “an
the Federal
agent
undercover
to attack the
offered
testimony
His
was
Investigation”.
he de-
when
of defendant Truitt’s
credibility
then
An
was
objection
that he
a communist.
nied
was
over-
attorney
defendants,
entered
was
was per-
ruled
allowed.
witness
exception
mitted to
that Truitt
an active
testify
communist,
ac-
Truitt’s communist
gave testimony concerning
on
testimony,
Truitt’s
tivities. This was
error.
clearly
a communist was
he
not
cross-examination,
A
cannot
matter.
witness
a collateral
obviously upon
credibility:
matters to test
on collateral
be contradicted
Common-
139;
v. The Commonwealth,
Hester
2d 288.
19 A.
And, nature to our is because victim punish, guilty but he man time, may because is bad as well be condemned that he is a tendency now is caught, which cannot fail operate any or out jury, of Court.” are judicial
We notice taken that aware is a, communist party organization subversive to teach and conspires advocate the overthrow government the United States force and violence: Milasinovich v. The Serbian Progressive Club, Inc., and the cases therein cited. There supra, how is, no that Local 65 is ever, competent proof commu nistic. There is no that Union Local proof No. 65, or defendants Truitt Smith, communists, were guilty similar crimes other in a design cases, pattern, In scheme of criminal conduct. Hester v. Com 85 Pa. a murder monwealth, other crimes 139, case, defendants as members of organization known as the Mollie order to Maguires, permitted prove In Commonwealth motive. Strantz, A. evidence of other crimes competent was held plan. common scheme or See also Common prove wealth v. 198 A. Common Fugmann, 99;
wealth 2d Pa. 3 A. Common Kluska, 398; wealth v. A. 2d 663. Darcy,
The defendants’ contention that was fundamental error for charge the trial to fail to the judge jury upon the the of de- guarantee against constitutional search fendant Truitt’s home to make an attempting arrest warrant, without a not at the trial and was raised therefore not need be this We opinion. considered agree also question juror that whether not ad- guilty driving misconduct home after journment of the court in the automobile of the aider- man a matter who acted as committing magistrate, trial of discretion Under judge. exercise are not circumstances this we convinced case, that it for the to refuse a motion judge was error trial op- there merely declare a mistrial because such 23 C. J. portunity juror: to influence S. sec. 1447, p. 1179; Craven, Commonwealth Ct. 11 A. 2d 436, 447, are reversed, sentences judgments vacated,
and a trial ordered. new
Concurring Opinion Horace Mr. Justice Stern: opin-
Mr. Allen M. writing Justice Stearns, fully ion in for the has vindicated court, case the defendants were conclusion namely, reached, trial grant- must be new fairly convicted other unnecessary ed them. therefore discuss It was my gravely marked, opinion, matters and, But greater trial. with the the conduct marred, I concurring opinion in a desire latitude permitted certain additional upon give my views expression proceedings. features of the under the that, provi- elementary
It is, course, and State Constitutions, our Federal sions both *10 defendants were entitled to a fair and impartial trial, such being indeed the essential requirement, require of “due ment, process law”. As was by said Judge in United States v. Major 136 F. 2d Haupt, 661, 671, of trial right a fair jury “comprehends deter free from or mination, passion of the issues prejudice, involved. The it right every embraces all-inclusive; class and for type person. Those whom con we have or tempt hatred are equally even entitled to its bene fit.” much Language to the same effect was expressed by the late Chief Justice Maxey in Commonwealth v. Petrillo, A. 2d 65, 97, 98, 333. The 317, 332, trial present case was “free from passion on the prejudice”; passion prejudice contrary, ran riot entire throughout its course. after Page page of the record is on replete attempts with the part that Commonwealth establish “Local 65” New York was controlled and that by communists Philip had Murray thrown out of the C.-I. O. because of its being communist that all its officers dominated; were that communists; its had president vice-president been cited aby Congress Committee communist that apparently defendants did not care activities; whether or not those were fact persons communists; that defendants’ counsel had in probably mind to Local charge rather than defendant for his Truitt, services that Truitt was a State commit case; teeman of the that Progressive that Party; party was dominated and controlled by that Henry communists; Wallace had withdrawn from that Truitt had had it; meetings Progressive Party that house; he had also held there of the American meetings Slav which he was that or Congress, member; controlled ganization Party Communist and had been declared aby Congressional subversive Truitt had been seen at communist Committee; meetings; and that all the other com- defendants were munists also.
Not content the creation of prejudice against to result in was bound from the defendants which jection into the trial of of commu these insinuations (charges nist which as Mr. Justice affiliations, all points not at the Com out, were proved), Stearne bring monwealth next race proceeded question into the case. Three of the defendants colored men. The “for Attorney purpose District *11 record” asked Truitt he whether wasn’t of the Cau casian and then him in white race,— asked man,— he why cross-examination allow colored would “these daughters with two two people” “associate” his con (the white women “association” in fact pickets; be of the defendants these women sisting merely in in living conversation the ing temporarily engaged room house Mrs. Truitt present). Truitt’s with in discriminated Truitt that he had never replied of their choosing whereupon friends because color, his “You the to be jury the said: want Attorney District he dis again lieve that?” and whether never asked friends criminated colored white people between in He daughters. suggestively his associating with on cross-examination the defendants one of quired on third floor did not his “girls” whether Truitt have to “entertain” defendants. the cross-ex another line prejudicial
Pursuing still District Attorney amination of the defendants, picketing stores why they were explain them to pressed in the labor strike New concerned not directly testimony they that were in the He out York. brought or in Kensington in’ New any in store employed not were employes in York New whose the establishment Local 65; members of they that were strike; on did not that hired merely pickets; that they were live in New had Kensington but come there from New York and from He Pittsburgh. examined them as to how much they in whether the le paid, they believed gality secondary boycotts, why they would want prevent employes from Kensington New working merely because of a strike in York. New
The trial judge, rehearsing testimony charge in detail repeated all jury, objec tionable evidence. he told the that True, “these jury men are not tried for being communists” and that being they were not to let any prejudice they might against have or against communism the Communist Party influence their But of decision. course that ad monition under more was, nothing circumstances, than a futile inade formal, pronouncement, hopelessly quate to that had repair damage been done mass on testimony that had been re subject ceived evidence. If court it thought necessary such a deliver it is difficult to understand warning it all why allowed to commu regard nism to be brought into the case, why repeated all of it its There are at least jury. charge *12 places the record where counsel four for defendants to the admission such testi strenuously objected of if even he had failed do mony, so it would have duty of the court of its own motion to pre into injection vent the trial of such wholly irrele evidence: vant, incompetent, inflammatory sinister v. Hazle Pa. 215 64 A. Wagner Township, 219, 225, 407. Nor is an from con court barred 405, appellate fundamental errors in the conduct of a trial sidering failed though may (if even defense counsel have or neg deliberately merely through but carelessness there exceptions and take lect) register objections Mr. Justice Chief (now to. In the ringing words v. 312 Pa. O’Brien, Commonwealth Justice) Drew “A not to be deprived 245: man is A. 244, 543, 546, 168 86 Mg reputation because inadvert liberty
ence of a trial or the of Ms coun judge carelessness sel in call attention of the court failing to trial palpable error which offends the fundamentals against of a fair and trial.” The impartial principle-thus stated has since been numerous cases both in followed our Court: Commonwealth v. and the Superior own 317 Pa. 176 A. Common 909; Robinson, 321, 908, 323, wealth v. 151 Ct. Superior Pa. Wiand, 444, 449, 448, v. 152 30 A. 2d Commonwealth Pa. Su 637; 635, Bird, A. Common Ct. 33 2d perior 533; 648, 651, 531, 532, v. wealth 155 Pa. Ct. 38 A. Superior Gold, 364, 366, 2d v. 159 Pa. Commonwealth Su 487; O’Toole, 486, A. 2d Commonwealth perior 268; Ct. 592, 596, v. Ct. 50 A. 2d Superior 148, 154, 729; Balles, Jodlowsky, Commonwealth 732; A. 837. Ct. 2d 836, 284, 286, 287, all the testimony did the trial court admit only Not but it communism as above allowed concerning stated, objection defendant’s over Commonwealth, B. of the F. I. and agent to call an undercover counsel, at testimony great from him contradict, elicit Truitt that he had made never statements length, admissibility meetings. attended communist As out pointed error. clearly testimony a can be con witness opinion, Mr. Justice Stearne’s on mat only his credibility, in order to test tradicted, of ma the test being tried, the issue germane ters out on cross-examination a fact brought teriality would. have cross-examining the party whether being of his own case: it as part to prove been entitled 62 A. Ct. 434, 435, Pa. Superior Herr Erb, contend that no one would Certainly 2d introduced evi have properly could Commonwealth I. agent part F. B. of this dence the *13 been prop have if it even would And, in chief. case its duty been it have would evidence, admit such er to judge of the trial jury, merely instruct the not that received, Truitt’s, to affect credibility, but that purpose, was its sole and that it was not to be considered as substantive evidence; court obliged would carefully explain also have significance of these terms the differences between them: Commonwealth Blose, Ct. 50 A. 2d Herr v. 165, 172, 742, 745; Erb, Pa. Su perior Ct. 62 A. 2d 433, 434, require
It too clear to elaboration that all the highly inflammatory personal on attacks made the de nothing inquiry fendants had to do whatever with the they guilty charged toas whether were of the crimes Being bills indictment. a member of the Com Party, involving .teaching munist as does the advocating government by of the of our overthrow force griev is itself and one far more violence, crime, any ous than of those which these defendants charged; were their therefore conviction should by sought attempting prove, have been in they guilty graver sinuating, that much were being crime for nor then were not indicted tried. to defendant Smith the sole issue As was as fighting, who started the or the witness Pee, —he —and point being testimony, on that there there was diverse by. an intimation that aided latter, friends, instigator might fight real have been the there followed. As the other were also defendants, for the Com different told the witnesses stories and the the defendants as to monwealth witnesses responsible the officer for the scuffle with who was Certainly place at home. deter which took Truitt’s factually mining lay to these con truth where the questions of communist affiliation, matters troverted wholly picket, rights of labor and the race, immaterial. *14 in- legal
There another fundamental question in the namely, volved, completely ignored, trial, but of the presence of the officer Truitt’s the lawfulness officer make It law that an may home. is hornbook an arrest for a misdemeanor unless the offense was committed in his The crimes with these presence. which all misdemeanors: The charged defendants were room There is Penal Code of §§314, 401, 708, Bor- for doubt officer in the as whether or de- an committed affray being donaro saw actually in any apparently, fendant Smith engaging affray; he running came the Smith was upon scene, away, when had culpable he been the aggressor, whether because on the as he and others his behalf victim or, testified, therefore, an should have assault. question, officer to the whether jury been submitted for he did the' crime seek attempted witness and the home, jury out and Smith Truitt’s arrest that if the offense been instructed should have indicted and tried was not committed which Smith was latter had in the no with- presence right, officer’s to arrest him Truitt’s out warrant, attempt he circumstances, under such would have for, home, had and Truitt would have there, intruder him from prevent searching right constitutional at home. It was not raised question is true this but is so vital counsel, the trial defendant’s by heart of the very question going fundamental, of the parties as to the when legal rights relative that, under the au- scuffle the officer took place, with court this may thorities hereinbefore neverthe- cited, take of it. less cognizance opin- I in accord am wholly
It follows re- in this and with the decision ion court case and or- vacating sentences, versing judgments, trial. dering new majority opin- Justice
Mr. concurs in the Chidsey concurring opinion. ion and also Dissenting Opinion Mr. Justice Bell: John Fee attacked and beaten Smith, pickets leaving Eagle other while he was after Store having purchase. A made a and Tar- riot ensued. Smith *15 pley, affray; of an and defendants, were convicted ag- Tarpley, Peay of Truitt, Allen and were convicted gravated battery upon assault an and and of officer, obstructing attempting an an ar- officer to make alleged them rest. that Fee attached one Defendants of they merely; and and were themselves, ef- defended bystanders; they innocent and denied that fect affray caused an or assaulted the officer or obstructed justice. paid by
The defendants hired and Local No. were City a union in the York. Local No. New 65 sent of the defendants from under two New York, who, Pittsburgh employed their and recruited two orders, Eagle picket other defendants to Store West- Pennsylvania. employes County, moreland The Eagle Store Local were not members of No. but and members of C.I.O. there was no Union; dispute Eagle strike nor labor or industrial According testimony Store. a to the of witness who was investigator an undercover of communist activities the F. B. I., communist; defendant Truitt was according to Local of another witness, No. 65 was thrown the C.I.O. because was out majority opinion, in “communist The re- dominated”. versing Superior of the Court unanimous decision rulings judgment which affirmed of the lower it was sustains the defendants’ contention that court, charge permit error of communism reversible to injected trial. be into this 90 predi is majority opinion
The on which the theory there cated is from apparent quotation the following are mem from: any “Whether or them, defendants, doctrines adhere its bers communist or party in or the issue of guilt a matter foreign entirely battery nocence on assault charge affray, make attempting an officer obstructing while mo indicate Nor relevant is such evidence arrest. . .* tive, majority question also held Party No. the Progressive whether Local Union 65 or dom or “communist was “dominated communists” the slightest probative inated” without hearsay was. without admitted or relevant it was though value, even objection. disagree. With I completely this view or design plan prove
Evidence
motive
tending
admissi
always
or scheme of criminal
conduct has
v.
Com.,
Hester
McManus
ble:
v.
139;
Pa.
Com.,
Com.
Com.
Pa.
A. 88;
57;
Fragassa,
v.
Chalfa,
Com.
379;
Ct.
Campolla,
*16
Petro,
v. De
Com.
313 Pa.
* throughout, ours. Italics
91 In v. Com. this Court Williams, supra, Pa., said : “There well rec (page 148) many however, are, commission of another ognized exceptions where the offense defendant be received evidence. may Prior convictions can be admitted in evidence show or accused intent, scienter, motive, identity, plan, he one to com together handed organisation of mit crimes the sort or con that such charged, prior of viction or criminal act formed or a a part chain, was one of a or sequence became acts, part history of the on event or the natural trial, part development of also the mental con facts; prove dition when the defense or to rebut insanity, inference of or to mistake, show guilty knowledge: Com. v. Com. 282 Pa. Com. Coles, supra; 492; v. Cicere, v. Pa. 232; Com. v. Dorst, Quaranta, For these or prior criminal rec purposes convictions ords either may be out on cross-examination brought or extrinsic hy Goer testimony: sen Com., supra; Com. v. supra; 105; Com. v. Pa. Com. Coles, Weiss, Ferrigan, Criminal Evidence 386; Wharton, (10th .” Edition) section 31. . .
While communism the Communist membership Party was not at the time of the trial criminal of- fense es- principle it is clear that Pennsylvania, tablished by these cases is equally applicable tend- permits any case the introduction evidence to prove ing plan. scheme or motive, design,
Commencing some of studied com us who munism have America to the dan attempted awaken ger revolutionary menace this worldwide move *17 and ment, which from the the speeches, the writings, actions of its of a is, leaders the beyond peradventure the enemy avowed mortal of the United States. doubt, It at is last first long recognized country by some finally political leaders, the and some people by 92 policy major and that
union leaders and some courts goal party over undermine, of the communist is by sabotage, destroy force and our throw Government clearly realized not as and However, violence.* is by policies plans, the the which that the and tactics great goal attempt their the communists to achieve instigate promote fightings, is to and assaults disputes, to arouse strikes and labor to cause riots, every by oppose passions, creed and and color class, agents including police and means and other the force, employees government. state and national local, Many patriotic and blind Americans remain naive still practices employed the and the methods unwitting agents or un and their ofttimes communists, arising suspecting especially stooges, out of in cases picketing, disputes. strikes or labor obviously jury did and find, could have found, fighting aggressors instigators that the and of the with Fee that three them defendants; affrays rioting; caused and that four them policeman justice; assaulted á and and obstructed exactly pattern, all of this accordance with the policies, design fre- most motives, quently used of the Communist methods and tactics agents Party, politically-naive its its members, employes. Why, prove then such wasn't evidence admissible planning, design? motive * judicial 1951, 27, the first time “took this Court for November organization party is a subversive notice communist the. government conspires teach and advocate the overthrow of the United force and violence”: Milasinovich v. Serbian States Progressive Club, Inc., 26, 84 A. 2d 571. Cf. McAndrew Co., 504, 513, v. Scranton R. P. A. 2d 780. See also: Act C., seq.; of June 61 Stat. 29 U. S. section 141 Den et States, (1951). v. United U. S. nis *18 In v. the defendant Hester 85 Pa. where Com., policies of of the. of a evidence murder, was convicted Maguires”, organization as the “Mollie secret known a held to be ad of defendant was was member, which prove plans. or in order to scheme motive, missible 156) purpose (page to ex : “Its was This Court said existing plain conspirators, the relations between opportunity and for combined motive their reason, togeth the tie that bound them and the nature action, of prac prove proposed under its that, er. .. . It was organization workings, had come to be the tical every grade per procuring crimes to be of means of affrays petrated in and as A trials ...” fortiori, plans policies, saulting and of the an officer law, 'workings practical and communists and the methods Party, dominated and communist the Communist pickets (which imported employed these out and union important no defense where area, side store, involved), dispute should be admitted labor was prove the nature and tie and motive, order to reason together, plan the common them scheme that bound fights promote and to cause and and riots assaults justice. to obstruct v. Carroll v. McManus 91 Pa. Com., 57, 66;
In
Campbell
Com.,
It clear defendants were communists to prove admissible organization together were members of an banded charged. commit crimes the kind may point It not be amiss out that evidence many communism is inadmissible criminal trials. example, For evidence defendant is a communist, employed by or a member of or a communist dominated highly prejudicial union be would and inadmissible in charge adultery rape, battery by or or assault and ordinary larceny, burglary or in the automobile, case of robbery (unless gov- or involved or connected with papers, etc.)., ernment war secrets, because material, part commission one of these crimes is not a teachings communist, practices, or doctrine, design. hence such evidence would show motive judgment Court should be sus- experienced tained for another reason. The defendants’ timely objection counsel failed to make to the introduc- *20 tion of and this evidence failed to' it move strike obviously feeling might help that it their case. It out, by majority Eagle is conceded that “. . . the Store manager permitted testify objection was without that Local Union 65 was out of the I. ‘thrown C. O. be- cause are communist dominated’that “Defend- objection, ant without Truitt, was cross-examined con- cerning membership Progressive Party, his in and political party whether or not such was ‘dominated by communists’ that defendant Smith cross-ex- ”; amined about the communist influence Local No. employed organize picketing, [He him to which 65, anything admitted didn’t mean to him whether objection officers or were communists with one not], majority end of cross-examination. towards the question opinion objection this to this one holds that was sufficient to cover make inadmissible all the previous subsequent questions by the District At- torney all direct the Commonwealth’s as evidence, objected-to “an rebuttal Cvetic well its evidence 96
undercover agent with the Federal Bureau of Investi- gation .....that Truitt active communist, and . . . concerning Truitt’s communist activities”. On this I point again or disagree conclusion view the majority.
I believe that the issue considering involved, not col- communism if any existed, was defendants, important but was material and lateral, relevant, and tactics —all prove motive design, scheme, plan, from a communist or which flow the fact being union; for a “communist dominated” picketing from defendants have any might event any rights to object testimony deliberately had to such waived. any incompetent hearsay
Where irrelevant or ob- are not questions is elicited testimony and no is made strike such timely motion jected to, testimony properly from the record, are weight the record and part credibility its not be admissibility and its will matters for the jury; v. 264 Pa. verdict. Cf. Com. Brown, 85, reversed after v. 247 Pa. 93 Rogers Bros., 54, 63, Forster A. 676; 107 Pa. A. v. 118 Finnessy, 568; A. 26; Pyle Ct. Superior 133 Pa. A. v. Woloszchuk, Com. Com. Ct. Superior 79; v. Retacco, 2d Com. 10; Ct. Hay, the de where Pa., supra, In Brown, Com. guilty murder, and found charged fendant was for a at error district not reversible held it was Court *21 from he a deserter defendant whether was to ask torney was no objection it appeared the where army the court re or until question, the at the time to made reasons de give to permit defendant fused serting. said 247 we supra, Pa., Bros., Rogers
In Forster irrelevant rule: When the true “This is : 63) (page testimony questions incompetent elicited is which objected put, at are and the are not the time permitted proceed testimony upon trial is with this request it a of a to strike made refusal record, out, not re- after the has left the be stand, witness will only is to such a case course ask viewed; jury disregard testimony, be instructed to request assigned can be for error.” refusal Superior In Com. v. 133 Pa. su Woloszchuk, clearly Ct., correctly pra, the Court stated the as law (page 473) duty appellants : follows “It was objections promptly to enter their an before answer given inquiry prosecutrix’s reputa to the to the objection promptly, If tion. ... an entered proper practice tois at and before the wit once, move testimony, leaves ness to strike out the stand, and, exception: if the court refuses do take an Com so, Hay, Superior monwealth v. 80 Pa. Ct. Com 503, 506; monwealth v. A. In fail Brown, 85, ing timely may objection, to enter a be defendants questions deemed to have been satisfied to have granted asked. A will reversal not be where the record acquiescence alleged indicates in the defendant erroneous introduction evidence’. Commonwealth Emery, 273 Pa. A. 338. ... said in We Com monwealth v. Retacco & 82 Pa. Ct. Retacco, responsive questions 80: ‘The answers were objection no responsive had been after made; replies are generally so speaking, received, is, too ” late to avoid their effect.’ majority, I are believe, likewise incorrect when they say the Commonwealth’s evidence was inadmissi- ble because communism a collateral matter no hence rebuttal was admissible on this point. We said in Commonwealth v. Petrillo, “Wigmore 19 A. 2d 209, 224, [On Third Evidence, *22 98 only says ‘The 1003: in section 3] Volume
Edition, in At is that laid down [of “collateralness”] true test torney-General Pellock, Exch. 99 C.B.’ Hitchcock, v. Could, predicated, have is error as to which fact, independently purpose any in been shown evidence for the contradiction?” Maguires” “Black Hand” Under the “Mollie clear it seems cited, other cases hereinabove Party ac- membership or communist in the Communist employment by un- dominated or tivities communist properly for the ion evidence could have shown design, proving plan in- purpose motive, scheme, dependently Truitt. contradiction helped by the fact are not defendants
Furthermore,
admitted without
was
some
the evidence which
opinion
“hearsay”.
majority
objection,
over
was
aptly
principle
as so
looks the established
of law that,
Justice)
(now
stated Mr.
Chief
Justice
Drew,
Harrah v.
Railroad
Appellants represented by counsel made any testimony; request no motion to out no strike jury disregard testimony; made instruct exception charge and no was taken to the of the court. response at the trial, conclusion Moreover, question anything of the court he had as whether say, . I counsel for the “. . have defendants said: *23 nothing say to reference to the trial case. with my I quarreling am not the trial of the case. To with just just mind tried like it was another that was case always being other of interested outside cases, trying I am to do the best I can for defendants, the case satisfied I’m with with verdict. satisfied today, as tried. The tried the verdict if it were verdict, just pleading be would after the same.” Counsel, leniency, if he then each of the defendants would asked say replied something, to like of “no”. each them judge The trial and heard the witnesses who saw opinion said none that . . . of his “the defendants, belong purported whom to the union in which gathered points represent, were from ... as [distant] party, members of to foment trouble and the communist “we are create strife and and that confusion”; opinion tried as that this ease was the defendants wished it to have tried”. In confirmation of this later Superior judge, statement the trial Court said (169 335) page “Trial counsel : Ct., interrogated. appellants satisfied to relative have alleged their connections and activities communistic argument and their relation Local At the before with 65.... junior appellants t his trial counsel for Court, during stated to this the trial he had asked Court object to the cross-examina the senior trial counsel to and ac tion communistic connections relative to such part appellants, and that the on the senior tivities object not and that he want trial he counsel said would go into the record.” ed such possible of the al- to reverse because then How is alleged leged or the careless- of the court inadvertence in accordance tried the case was of counsel when ness strategy carefully planned the deliberate the defense? or second for new world easiest thing everything nearly
choice counsel to do to criticize is trial law- experienced reputedly competent I be- did or failed it is yer Moreover, not, to do. Judge the function of lieve should be, part A be an for the defense. defendant, armchair strategist has the. may be; no matter criminal record how bad his around his shoulders mantle innocence draped be- proved soon as he crime must be is his arrested; unanimously be yond jury reasonable must doubt; he decisions, convinced under Courts’ guilt; the Common- protected against against police, attorney, wealth’s district against witnesses, protected the trial and now he is be against judge; *24 igno- assumed against strategy, unsuccessful of his ex- rance or imagined neglect or the stupidity law-abiding of all citi- perienced lawyer. On behalf I of the crim- protest against this trend favor zens, consideration, should, I inal believe more ; thought be rights decent-living of the given protecting of or instead law people rights violators hardened criminals.
In today’s constantly fluctuating chaotic, an im- changing tactics world, play psychology A portant part; trial should be allowed lawyer try his- case best for as he believes client, client’s it is he and not or the succeeding counsel Court has the right duty who and the decide the strategy; I and the tactics the trial. am con- psychology that appellate lawyers judges vinced and appellate should being stop “Monday morning grandstand quar- terbacks”.
As so
said
President
aptly
Judge
Rhodes
in this
Pa.
opinion
Ct.
326, 335,
case,
2dA.
699:
present
may
counsel
have tried
“Although
the case
does not
warrant
reversal
differently,-
for a
A.
serve as
reason
new trial.
defendant
free to choose his
and counsel must he left
counsel,
free to
try
case as he
best. When a
thinks
defend-
ant
is represented by
counsel of
competent
his own
it
an
choice,
ought
be
rare
exceedingly
case where
court
appellate
would declare
fundamental
error
for the trial court to receive evidence
intro-
which was
duced without
On this
objection.
occasion appellants’
counsel
chose to
deliberately
try the case as he
did,
he and his clients
abide by
must
the result. Trial strat-
egy and the conduct of the defense are matters which
must be left
to the
largely
judgment
trial counsel.
United States ex rel. Darcy v. Handy, D.C.M.D. Pa.
97 F.
Com.
Supp.
ex rel.
930;
Darcy v.
Claudy,
The defendants themselves, trial trial counsel, Court Judge, en and all banc, the six sitting Judges the Superior Court of Pennsylvania found nothing prejudicial in the trial of I agree this case. with them.
I affirm would judgment the Superior Court which in turn unanimously affirmed the judgment the Court below. joins
Justice Ladner in this dissent. *25 Appellant. Dulles v. Dulles,