Com. v. Campbell

• Decision Date: 16 November 1961
• Docket Number: C,No. 34,No. 32,T,No. 33,32,33,34
• Citation: 196 Pa.Super. 380,175 A.2d 324
• Parties: COMMONWEALTH of Pennsylvania v. Charles Christopher CAMPBELL, Appellant inharles William Lang, Appellant inhelma Adele Ensor, Appellant in
• Court: Pennsylvania Superior Court

Page 324

175 A.2d 324

196 Pa.Super. 380

COMMONWEALTH of Pennsylvania v. Charles Christopher CAMPBELL, Appellant in No. 32, Charles William Lang, Appellant in No. 33, Thelma Adele Ensor, Appellant in No. 34.

Superior Court of Pennsylvania.

Nov. 16, 1961.

Rehearing Denied Dec. 11, 1961.

Victor Dell'Alba, York, Martin Vinikoor, Vinikoor & Criden, Philadelphia, for appellants.

Frank B. Boyle, Dist. Atty., Jesse L. Crabbs, First Asst. Dist. Atty., York, for appellee.

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

MONTGOMERY, Judge.

The three appellants were indicted separately under section 718 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4718, and were convicted on the third count only, of unlawfully, willfully, and feloniously using a certain instrument and means, the nature of which instrument and means was unknown, upon certain women with the intent to procure miscarriage of them.

The Commonwealth presented all of the evidence that was offered in the case. All three defendants elected not to testify nor to offer any other evidence on their behalf.

The Commonwealth's evidence discloses the following factual situation. On the evening of November 21, 1958, the Pennsylvania State Police, armed with a search warrant, stationed themselves near a house located in Heidelberg Township, York County, observing the approach of two cars, whose drivers and passengers entered the house. a few minutes after these people entered the house the State Police entered by using a key which they had previously obtained from the owner of the premises and, upon entering, observed appellant Campbell sitting on a stool beside an operating table and dressed in a white surgical gown and cap, a pair of rubber gloves on his hands, and a surgeon's mask tied around his face.

Appellant Ensor was found removing a white uniform similar to that worn by nurses. Appellant Lang was sitting in an adjoining room in ordinary street clothes. In the several rooms of the house two women were found in beds, another one sitting on a bed dressed in her slip, and two others fully clad. In the room where appellant Campbell was seated, in addition to the operating table, the officers found various surgical instruments, gauze, drugs, and other medical items.

The two women who were found occupying the beds, and the one in her slip, were taken to the office of Dr. Thomas Hart, where they were examined by him. His examination disclosed evidence of surgical procedure in the region of the reproduction organs of two of the women, Nancy Reese and Elizabeth Troyer, but not on the third girl, Hazel Reed. One of the other women, Barbara Perry, a Commonwealth witness, had consulted Dr. Hart as a private patient sometime previously. Dr. Hart had diagnosed that she was in a pregnant condition, but it was not contended that any abortion had been performed upon her.

Appellants were all interrogated that evening, at which time the appellant Campbell signed a written statement in which he said he had been performing surgical procedures upon women for the purposes of inducing abortion or miscarriage, explaining in detail the occurrences of that particular evening, and that he received a fee of $200 for each operation.

Appellant Ensor, in a verbal statement to the police, said that she was employed by Campbell; that she had training as a practical nurse; that her duties were to administer to the general needs of the women who came to the house.

Appellant Lang said that he had heard Campbell was performing abortions; that he was employed by Campbell to work on his farm, and that on the particular evening in question he had been instructed by Campbell to pick up and transport two of the women to the house, using back country roads.

Appellants' first contention is that they were denied their constitutional rights to a fair trial by the failure of the Commonwealth to produce the alleged victims of the abortions, and by the withholding of evidence that they would not testify for the Commonwealth. Although the Commonwealth must try a case fairly, and the district attorney is not a 'vindictive seeker for vengeance', the calling of witnesses is within the discretion of the district attorney under the general supervision of the trial judge. The Commonwealth is not obliged to call all eyewitnesses in a criminal prosecution, nor a particular eyewitness, where the district attorney has reason to believe that the eyewitness is unreliable. Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872; Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540; Commonwealth v. Repyneck, 181 Pa.Super. 630, 124 A.2d 693; Commonwealth v. Lomax, 196 Pa.Super. 5, 173 A.2d 710.

In the instant case these women were not victims in the adverse sense of the word but, rather, individuals who had voluntarily undertaken to have an abortion performed upon them. Such a person is described not as an accomplice or particeps criminis, but rather as the victim. Snyder Appeal, 189 Pa.Super. 13, 149 A.2d 666; Commonwealth v. Sierakowski, 154 Pa.Super. 321, 35 A.2d 790. Under these circumstances their reliability in testifying would certainly be questionable. Subpoenas were issued for three of the women, two of which were not honored, and the third of which could not be served because the witness could not be found. The defense was fully aware prior to the trial and again informed the first day of the trial that the Commonwealth would not call these witnesses if they did not voluntarily appear upon subpoena; and there was nothing to prevent the defense from calling them if their testimony was to be adverse. The lower court did inform the jury that they could consider the testimony of the two witnesses who were served and failed to appear to be adverse to the Commonwealth, but refused to instruct that the witness who could not be found would also be adverse. It is argued that the court's refusal to so charge as to the third one was prejudicial error. We see no error in this unless it be in giving the defendants the benefit of having the jury draw an unfavorable inference from the absence of the two girls who were served. These witnesses were available to both the Commonwealth and the defendants. The Commonwealth had no particular control over any of them; and it has been pointed out previously that such persons might reasonably be expected to testify for the defendants and not the Commonwealth. Under these circumstances the rule has no application. Commonwealth v. Black, 186 Pa.Super. 160, 142 A.2d 495.

Aside from the statements of the defendants other evidence presented by the Commonwealth shows unequivocally that two abortions, or attempts to commit two abortions, had taken place. We conclude therefore, that there was no abuse of discretion on the part of the trial judge in concluding the cases without insisting on the appearance of these witnesses, and that there has been no violation of any of defendants' rights. We think it also significant that the defendants, at no time during the trial, requested the presence of these witnesses or the enforcement of the subpoenas that had been served upon them.

Appellants further contend that they were denied their constitutional rights by the lower court's refusal to permit counsel to cross-examine on the question of the probable cause for issuance of the search and seizure warrant.

At the time of the trial and prior to the recent decision of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which prohibited state courts from admitting into evidence any matter which was obtained by an unlawful search and seizure, Pennsylvania had as its rule that even though a search warrant was illegally issued, it did not affect the admissibility of evidence obtained under it. Consequently, when the court below ruled that the defense counsel could not cross-examine on the question of probable cause or issuance of a search warrant, it correctly applied the existing law. Appellants admit this, but claim that in light of the complete change in the law the lower court should be reversed and a new trial granted. This contention would be meritorious if illegality in obtaining the search warrant had been shown. However, there is nothing in the record to show illegality. During the course of the trial, counsel for defense, in his cross-examination of the police officer who obtained the warrant, indicated that he was not attacking its legality but was merely attempting to show bias. The officer indicated that the complaint was made on behalf of the owner of the premises. The questions of counsel elicited no showing of illegality, or for that matter bias or prejudice, in the obtaining of the search warrant. Therefore, the change in the law effected by Mapp v. Ohio (supra) is not applicable.

The appellants further contend that the lower court committed prejudicial error in its ruling on the admissibility of certain evidence. Firstly, the court's admission of a large quantity of photographs and alleged abortion paraphernalia was cumulative. The extent or size of the quantity of evidence produced and admitted cannot be said to be prejudicial unless it was so repetitive that it could possibly sway the jury in its determinations. The Commonwealth followed up each item with testimony and attempted to coalesce them, presenting the complete picture to the jury. As the learned judge in the court below pointed out, while it may not have been necessary for the Commonwealth to introduce all of the exhibits that it did, such as everyday household items, the appellants were not prejudiced thereby.

Secondly, appellants objected to the admission of posed photographs of appellant Campbell, claiming that when the police photographers had Campbell submit to various poses including the raising of his surgical mask, it constituted a re-enactment of the crime. In Commonwealth v. Johnson, 368 Pa. 139, 81 A.2d 569, relied...