153 A. 767 | Pa. | 1931
In September, 1929, the defendant, Mike Zervas, was convicted of first degree murder, with recommendation of life imprisonment, for the killing of Spiros Fillas (also called Sam Fillas), on October 4, 1928. From *513 sentence imposed thereon, the defendant brings this appeal, setting forth certain trial errors; none of which can be sustained.
The Commonwealth's evidence in this case was circumstantial, as no one was brought forward who saw the crime committed. The parties resided in New Kensington and, as a motive, it was shown that the deceased was a witness against the defendant in a case pending in the federal court. Also evidence tended to show that the latter had sought to induce the former to leave and had made threats against him if he did not. Late on the evening of October 4th, the deceased was seen to drive from New Kensington in his Nash car accompanied, as Commonwealth witnesses declared, by the defendant. The next morning the body of the deceased, with mortal wounds upon it, was found in his car by the side of the road, near Vandergrift, in Westmoreland County. There was also evidence that the defendant was seen that night about midnight beside this car where the body was found. There was also the alleged flight of the defendant and additional circumstances tending to connect him and others with the crime, not material to the questions raised on this appeal.
During the trial, the defendant's counsel strenuously objected to an adverse ruling of the trial judge, who remarked, "If you were on the other side of the case you would think it was all right." Because of which the defendant asked that a juror be withdrawn and the case continued. The trial judge properly refused the request, but did, in effect, tell the jury to pay no attention to the remark. This was more than the occasion required, for the remark was harmless and far short of cause for the mistrial of a homicide case. The facts were entirely different in the cases called to our attention by defendant's counsel.
As a witness in his own behalf, the defendant denied that he was in the car with the deceased that night and stated that he went to Pittsburgh and took the eleven *514
o'clock train for New York. To corroborate this he called Christ Avaliogis, who testified that he saw the deceased get in his car late that evening and drive away alone and that the defendant was not with him. This was very important testimony and directly in conflict with that for the Commonwealth. Whether the defendant entered the car of the deceased and drove away with him late on the night of the homicide was one of the vital questions in the case. It was therefore competent, as affecting his credibility, to ask this witness in cross-examination, if he had not stated to the deceased's brother the morning after the occurrence that he saw the defendant get in the car in question late that evening at a designated point in New Kensington and go away with the deceased. As the witness denied he had so stated, it was equally competent for the brother, in rebuttal, to testify that he had. It was not a collateral but an entirely relevant matter, one about which the Commonwealth not only could have, but had offered testimony. The previous statement of a witness in conflict with his testimony as to a relevant matter may always be shown as affecting his credibility: Peterman v. Enggasser,
The testimony of Mrs. Ida Conwell, at whose home the deceased lived, that he had an appointment at her home that evening, whether competent or not, did the defendant no possible harm.
No reason was stated by defendant's counsel for desiring to cross-examine Officer Onko as to how long defendant was detained at the barracks, hence the exclusion thereof was not error. At most, the allowance of such cross-examination was a matter in the discretion of the trial judge: Littieri v. Freda,
The deceased was not a party of record in this case, and alleged statements made by him shortly before the homicide to the effect that he feared some one from Ohio was going to kill him was properly excluded, in the absence of any circumstances tending to connect such *516
party with his death. See Com. v. Winter,
The judgment is affirmed and the record is ordered remitted that the sentence may be carried out.