Com. v. Berkery

• Decision Date: 18 April 1963
• Citation: 190 A.2d 572,200 Pa.Super. 626
• Parties: COMMONWEALTH of Pennsylvania v. John BERKERY, Appellant.
• Court: Pennsylvania Superior Court

Page 572

190 A.2d 572

200 Pa.Super. 626

COMMONWEALTH of Pennsylvania v. John BERKERY, Appellant.

Superior Court of Pennsylvania.

April 18, 1963.

Rehearing Denied May 15, 1963.

Application for Allocatur Denied July 19, 1963.

Paul D. Sulman, Benjamin R. Donolow, Philadelphia, for appellant.

John F. Hassett, Arlen Specter, Asst. Dist. Attys., F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., James C. Crumlish, Jr., Dist. Atty., Philadelphia, for appellee.

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

WOODSIDE, Judge.

The appellant in this case was tried by a judge without a jury and found guilty of an attempt to commit burglary, possession of burglary tools, and conspiracy. The evidence of his guilt was overwhelming.

He seeks a new trial on the ground, among others, that 'the trial judge sitting without a jury may have been influenced by the fact that during the course of the trial, he became aware of the identity of the Defendant who had become the subject of great notoriety and publicity close to the time of trial.' During the examination of a Commonwealth's witness whose car was used by the defendant on the night of his arrest, the district attorney pleaded surprise and sought to cross-examine his witness concerning the car used to bring her home that night. In the cross examination, the district attorney wished to use a written statement made to him by the witness, but tried to limit the use to the single question concerning the automobile. The defendant's counsel objected, and thereafter the district attorney, the court and the defense counsel became involved in a prolonged colloquy. Finally, the court asked, 'May I look at that statement?' Without objection the statement was handed to him. It contained some matters not relevant to the case--particularly about the co-defendant who was then deceased. The court, thereafter, indicated that he recognized the defendant as the person whose name had been linked with another pending criminal case receiving wide publicity.

The trial judge was the Honorable William I. Troutman of Northumberland County, specially presiding in Philadelphia. He is a judge of long experience and with an outstanding reputation for ability and integrity. If his acquired knowledge of the defendant's identity had the slightest influence upon his decision, he undoubtedly would have granted the defendant a new trial when the opportunity was presented to him.

When a judge is hearing a case without a jury, he should try to avoid receiving knowledge concerning the case and the parties which would be denied to a jury, but this is not always possible. In order to rule on the admission of evidence, a trial judge must sometimes obtain information he would not submit to a jury, and this is true when he is trying a case without a jury as well as when he is trying a case with a jury. Judges are human, but they are also specially trained to decide cases on the evidence. They are conscious of the dangers of irrelevant facts and zealously guard themselves against being influenced by any facts not obtained from the evidence. Furthermore, just as it is impossible in some contorious cases to obtain jurors who know nothing of the defendant and the crime, so is it impossible for a judge to be free of all knowledge concerning notorious crimes and defendants. We are satisfied that the trial judge decided the case on the evidence, that he zealously protected the defendant's interests and that he was not prejudiced or influenced in his decision by the statement he read or the knowledge he obtained concerning the identity of the defendant.

The defendant asks us to arrest judgment, or in lieu thereof to grant him a new trial because of insufficiency of the evidence. As we stated at the outset, the evidence of the defendant's guilt, particularly on the attempted burglary conviction, ¹ fully supported the verdicts.

The following extracts from the opinion of the court below adequately set forth the facts and dispose of these contentions: 'The evidence produced by the Commonwealth in support of the indictments is to the effect that on June 12, 1959, at about 3:15 o'clock A.M., William T. Green, who lives at 2956 Rosehill Street, Philadelphia, Pennsylvania, and the rear of whose premises face the rear of the premises of the American Business Systems Company, heard footsteps on the cinders in the back of his house, and, looking out the bathroom window, saw a man walking toward the company fence along the railroad spur which led into the company yard. He observed two men carrying some kind of tools walking toward the gate. When they arrived at the gate one of the men broke the lock on the gate and both of the men entered, went over to the overhead door of the building which has been described as the north door, and tried to open it. He saw the movements of their bodies trying to pry the door open.

'Green went downstairs to his dining room and called the police and then went to the kitchen window where he could observe the two men in the yard. He heard the police car siren and saw the lights flashing. At that point, he observed the two men in the yard run alongside the fence and lie on the ground. He observed the policemen with flashlights around the premises and told them where the two men were. Green observed the police apprehend the two men who were identified as the defendant, Berkery, and Vincent Blaney.

'The rear of the premises of the American Business Systems Company is enclosed by what is known as a cyclone fence with a building erected along the west side of the premises with a loading platform. The railroad siding enters the yard and extends along the side of this building. As the siding enters the premises there is a double cyclone fence gate. Along the loading platform there are two overhead doors into the building, one described as the north door and the other described as the south door. On the morning in question, a box car was occupying the siding immediately in front of the south door but in no way obstructed the view of the north door.

'William Slack, a police officer, was familiar with the premises of the American Business Systems Company and at 2:00 o'clock A.M., on the morning of this incident had checked the front and rear end of the building after the place was closed up and found the chain lock on the gate secure. At approximately 3:30 o'clock A.M., he received a radio call that someone was attempting to break into the rear of the building and he immediately drove to the rear of the building in front of the gate. At about the same time, Michael J. Cole, a city police officer, drove into the rear of the premises. The police officers looked between the box car and the loading platform but saw no one there. At that time Green called to them that the men had run toward the eastern fence and were lying along the fence. The police officers then went to the east side of the fence and found the two men lying on their stomachs. They took hold of them and stood them along the fence and a cold chisel and a pair of brown bloves were removed from a raincoat worn by the defendant, Berkery. Blaney was wearing a pair of brown leather gloves. A pinch bar, sledge hammer and a three-way flashlight were found on the ground where the defendants had been lying. Later the officers found the broken lock and chain near the gate.

'Upon investigation, a Chevrolet...