Com. v. Albert

• Decision Date: 13 June 1962
• Citation: 198 Pa.Super. 489,182 A.2d 77
• Parties: COMMONWEALTH of Pennsylvania v. Richard ALBERT, Appellant.
• Court: Pennsylvania Superior Court

Page 77

182 A.2d 77

198 Pa.Super. 489

COMMONWEALTH of Pennsylvania v. Richard ALBERT, Appellant.

Superior Court of Pennsylvania.

June 13, 1962.

Application for Allocatur Denied Aug. 1, 1962.

Louis C. Glasso, Pittsburgh, for appellant.

Edward C. Boyle, Dist. Atty., William Claney Smith, Asst. Atty., Pittsburgh, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

WATKINS, Judge.

This is an appeal from the judgment and sentence of the Court of Quarter Sessions of the Peace and General Jail Delivery for the County of Allegheny, entered on a verdict of a jury finding the defendant-appellant, Richard Albert, guilty of the charge of lottery; and from the order of the said court dismissing his motion for a new trial.

On March 10, 1960, Richard Albert, the appellant, was arrested on a charge of operating a lottery and convicted on September 5, 1961. After the refusal of his post trial motion he was sentenced to pay the costs of prosecution, a fine of $500 and undergo imprisonment for six to twelve months in the Allegheny County workhouse.

The facts necessary for the determination of the questions involved in this appeal are as follows: The defendant had been under police surveillance for one year prior to his arrest. The Hill Top News and Confectionery, which business place was located in the 1900 block of Webster Avenue, Pittsburgh, owned and operated by the defendant's brother, Fred Albert, was also under such surveillance. He was arrested when operating a white Cadillac automobile in the company of a colored man by the name of James Hamilton. The police testified that they had observed the defendant, carrying a brown shopping bag, and Hamilton coming out of a store owned by his brother and enter the front seat of the white Cadillac car. Upon stopping the car and taking the defendant and Hamilton into custody, an examination of the bag found on the front seat beside the defendant, disclosed it contained 965 number slips, indicating a total play of $2255.25. The defendant admitted being in and coming out of his brother's confectionery store. He testified that Hamilton, not he, had carried the bag from the store to the car and that he had only agreed to give Hamilton a ride up the hill. He admitted that he knew what number slips were because he played the numbers.

He complains that the court below erred in admitting into evidence prior lottery convictions of the defendant and testimony concerning such crimes and erred in permitting the prosecution to introduce testimony of defendant's alleged association with number writers and other persons under investigation.

On direct examination the defendant testified that he did not know what was in the shopping bag; that he did not have any knowledge concerning the operation of this particular lottery; that the incident resulting in his arrest was not a matter of design but of accident. On cross-examination the questions were directed toward the issue of knowledge and so he was asked how long he knew Hamilton and answered, three or four years; that he knew that he worked at his brother's store. When asked if he knew what work Hamilton did for his brother, he answered, 'No, I couldn't tell you. I work for a living. I work at the Post War Activity. I am no numbers man.'

As the court below said:

'It is evident from defendant's direct examination and his answers made on the initial cross-examination that these answers were made for the purpose of convincing the jury that he had no knowledge of the operations of the number business except as a player and that his arrest on the charge for which he was then being tried was an accident or a mistake, as well as for establishing his own good character. Under this factual situation we are of the opinion that the objected to inquiry was pertinent for the showing of knowledge and in establishing his state of mind, intent, motive and purpose. Moreover, the cross-examination was proper and the truth of his answers to the questions asked was material in the consideration by the jury of the credibility to be given to the whole testimony of the defendant. Com. v. Dietrich, 65 Pa.Superior 599, 603.

'In Com. v. Wiswesser, 124 Pa.Superior 251, 265 , it was held that after defendant has given evidence of his good character he may be cross-examined concerning crimes of a nature similar to that charged in the indictment not for the purpose of showing his criminal conduct or reputation or prior arrests, but of determining the truth or falsity of his testimony as a whole. To this same effect see also Com. v. Petrulli, 182 Pa.Superior 625 and Com. v. Comer, 167 Pa.Superior 537, 540 .' See also: Com. v. Kline, 361 Pa. 434, 438, 65 A.2d 348 (1949).

'Great latitude is afforded the Commonwealth on its cross-examination of a defendant in a criminal case who takes the stand in his own behalf.' Com. v. Farley, 168 Pa.Super. 204, 213, 77 A.2d 881, 886 (1951)...