Com. v. Bartell

• Citation: 184 Pa.Super. 528,136 A.2d 166
• Parties: COMMONWEALTH of Pennsylvania v. Joseph BARTELL, Philip Brady, John Durkin and Anthony Bonacuse, Appellants.
• Decision Date: 12 November 1957
• Court: Superior Court of Pennsylvania

Page 166

136 A.2d 166

184 Pa.Super. 528

COMMONWEALTH of Pennsylvania v. Joseph BARTELL, Philip Brady, John Durkin and Anthony Bonacuse, Appellants.

Superior Court of Pennsylvania.

Nov. 12, 1957.

Application for Allocatur Denied Feb. 10, 1958.

Hugh J. McMenamin, J. Charles Hanahue, of Warren, Hill, Henkelman & McMenamin, Scranton, James E. O'Brien, of Kennedy, O'Brien & O'Brinen, Scranton, for appellants.

Carlon M. O'Malley, Dist. Atty., William J. Kearney, First Asst. Dist. Atty., Scranton, for appellee.

Before RHODES, P. J. and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

RHODES, President Judge.

These appeals by defendants, Joseph Bartell, Philip Brady, John Durkin, and Anthony Bonacuse are from judgments of sentence of the Court of Quarter Sessions of Lackawanna County. Defendants were indicted for conspiracy 'to unlawfully, wilfully, wantonly, and maliciously damage and destroy and cause to be damaged and destroyed a certain partially built and constructed building and structure then and there situate at Number 1045 North Main Avenue, in the City of Scranton.' The prosecution arose out of the dynamiting of the dwelling which was being constructed by nonunion labor.

Defendants were tried and convicted by a jury. Their motions in arrest of judgment and for a new trial were denied, whereupon sentences were imposed. Defendants, with the exception of Durkin, were officials of building trades unions in the Scranton area. Durkin was an officer of Local No. 229 of the International Brotherhood of Teamsters, Chauffeurs and Helpers. All defendants were members of the Scranton Building Trades Council. The Scranton Building Trades Council is an affiliation of twenty-six unions including the Teamsters' Union. Defendants were also connected with other labor organizations. A previous trial resulted in a jury disagreement.

These facts were established by the jury's verdict: In January, 1954, Edward Pozusek, a building contractor from Luzerne County, contracted to erect in Scranton a dwelling for Mr. and Mrs. Andrew Ruby. Construction was started in April, 1954. On the first day, while excavating the cellar, defendant Bonacuse appeared and inquired of Pozusek whether he was conducting a union job. Pozusek replied that he was not, whereupon Bonacuse said: 'I'd really advise you to get into the union or you'll have plenty of trouble around here.' Before leaving Bonacuse stated that he would return. On April 28, 1954, Bonacuse, accompanied by defendants Bartell and Brady, called upon Pozusek again. The three defendants demanded to know whether Pozusek 'was union.' Bartell then questioned the right of Pozusek to build a home in the Scranton area and told him to go back to Wilkes-Barre where he belonged. When Pozusek refused to be intimidated, Bartell stated: 'You don't know the first * * * thing about trouble, * * * Why, we'll give you so * * * much trouble over here you'll get out of Scranton with ulcers.' The three defendants then conferred and departed. The next day, April 29, 1954, Bartell, Brady, and Bonacuse went to Tobyhanna, Pennsylvania, to see Paul Bradshaw who was employed in the construction of the United States Army Signal Corps Depot, and who was also a steward in the Teamsters' Union. Before these three defendants arrived, Bradshaw had talked by telephone to the defendant Durkin who told Bradshaw that Bartell and Brady were on their way to see Bradshaw and 'some of the boys.' Durkin instructed Bradshaw to go along with whatever they wanted. Bartell and Brady spoke to Bradshaw and one Joseph Malloy about a 'wise-guy' contractor who was building a nonunion house in Scranton, and who had to be taught a lesson. Meanwhile, Bonacuse had crossed the road to talk to a steward of his union. Bartell told Bradshaw and Malloy they wanted the foundation walls knocked out and the joists cut so that the building would collapse under weight. Brady told Bradshaw to get in touch with another teamster, Robert Hubshman, who apparently had knowledge of the proposed destruction of the Ruby house. Bradshaw and Malloy recruited another member of the Teamsters' Union, George Murphy, to help carry out the instructions. That same evening Bradshaw, Hubshman, Malloy, and Murphy met in Scranton with defendants Bartell and Brady and discussed the plan to damage the Ruby property. Bradshaw, Hubshman, Malloy, and Murphy then went to the Ruby premises. They decided that they could not do an effective job with saws and crowbars. They concluded to use dynamite. Thereupon they proceeded to Jessup, Pennsylvania, where they contacted William Munley, a member of the Teamsters' Union, and enlisted his aid as a dynamiter. The following day, April 30, 1954, Bradshaw, Hubshman, and Malloy talked with defendant Bartell about the use of dynamite; Bartell told them to use only saws to cut the joists and to knock out the foundation. Bartell furnished the saws. That night Bradshaw, Hubshman, Malloy, and Murphy went to Jessup to pick up Munley and the detonator. They returned to Scranton and dynamited the Ruby house. Bartell then paid them $100 which they divided; he expressed disapproval of the use of explosives but told the men to keep quiet.

Bradshaw was subsequently arrested, indicted, and convicted of feloniously dynamiting the Ruby property. The Scranton Building Trades Council provided counsel for Bradshaw. About two weeks prior to Bradshaw's trial in January, 1955, defendant Durkin visited Bradshaw at his home and told him that if he would take the 'rap' and keep quiet his family would be taken care of. Durkin assured Bradshaw that his jury would be fixed. Before his trial Bartell also talked to Bradshaw and told him that he should keep quiet and that everything would be all right. On the Saturday preceding Bradshaw's trial, three of the present defendants, Bartell, Brady, and Durkin met with Bradshaw and his trial counsel and conferred about the defense; Bradshaw was given $100 to pay to one of his witnesses.

After Bradshaw had been convicted, Brady also told Bradshaw to 'take the rap,' and promised Bradshaw that his wife would be given $150 to $200 a week as long as he was in jail. Bradshaw became dissatisfied with the failure of the union officers to keep their promises, and, on May 31, 1955, he gave a statement to a Scranton newspaper reporter directly implicating the dynamiters Hubshman, Malloy, and Munley. The present defendants were not mentioned in the statement. Hubshman, Malloy, Murphy, and Munley were subsequently indicted and entered pleas of guilty the charge of feloniously using dynamite at the Ruby premises; they were sentenced to prison. On June 10, 1955, Bradshaw gave a second statement to the newspaper reporter in which the present defendants were implicated. Following a grand jury investigation they were indicted for criminal conspiracy.

Defendants question the sufficiency of the evidence to sustain their convictions. The facts as we have summarized them clearly demonstrate the role of each of the defendants in the conspiracy. All of them did not participate in every step of the plan, but each played an essential part in the series of events leading to the overt act.

Bonacuse initially, and then with Bartell and Brady, opened the matter with Pozusek; they made the threats which were subsequently consummated. Together they went to Tobyhanna to make the arrangements with Bradshaw. There Bartell and Brady solicited Bradshaw and others to do the actual damage. Durkin make the contact between the officials of the building trades unions and the members of his own Teamsters' Union who were recruited to inflict the damage; he gave approval to the unlawful job which the officials of the other unions laid out to be perpetrated by the members of his union. Moreover, the actions of Durkin with Bradshaw after the dynamiting, in an effort to prevent prosecutions, are indicative of his own participation in the original plan. It is significant that two police officials testified that Durkin told them that if he had known they were going to use dynamite the job would not have been done. Bartell and Brady are too obviously implicated by their conduct to require any further elaboration. The criminal action of the dynamiters was the product of the combined efforts of defendants.

Defendants would have us hold that the testimony of Bradshaw should be declared unreliable as a matter of law. Since it was Bradshaw's testimony which directly connected all the defendants with the conspiracy they contend that there is thus insufficient evidence to sustain the convictions. We do not agree that Bradshaw's testimony should be rejected as a matter of law. Although Bradshaw may be under indictment for perjure he has not been convicted and sentenced. Until that time he is a competent witness. Commonwealth v. Billingsley, 160 Pa.Super. 140, 146, 50 A.2d 703. The conflicts or contradictions between the testimony of Bradshaw at this trial and his prior statements are matters which could affect his credibility and which the jury could consider in its deliberations. The jury was properly instructed that it should scrutinize Bradshaw's testimony with care, but his testimony was not of such a nature as to make it completely unworthy of belief. If a witness has made inconsistent or contradictory statements they may affect his credibility (Commonwealth v. Turner, 371 Pa. 417, 430, 431, 88 A.2d 915, 32 A.L.R.2d 346; Commonwealth v. Fields, 171 Pa.Super. 177, 181, 90 A.2d 391) but they do not make him an incompetent witness. In fact, even if a witness testified differently at a former trial his testimony at a subsequent trial is not to be rejected for this reason alone; such contradictory statements "affect his credibility, but do no authorize an instruction to the jury not to believe him." Commonwealth v. Alessio, 313 Pa. 537, 544, 169 A. 764, 766. Where a witness is confronted by such contradiction his final statement is the one which...