Com. v. Markwich
| Decision Date | 12 April 1955 |
| Citation | 113 A.2d 323,178 Pa.Super. 169 |
| Parties | COMMONWEALTH v. Bernard R. MARKWICH, Appellant. |
| Court | Pennsylvania Superior Court |
Irving W. Coleman, Northampton, for appellant.
Robert V. Ritter, Asst. Dist. Atty., M. Jack Morgan, Dist. Atty., Allentown, for appellee.
Before RHODES, P. J., and HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Defendant was convicted on six counts of an indictment charging him with bookmaking and with various phases of setting up and maintaining gambling devices in his retail dress shop in Allentown He was sentenced on the general verdict. In this appeal it is contended that he is entitled to a new trial because of the admission to his prejudice of allegedly incompetent evidence. Although it is conceded, as it must be, that the evidence otherwise is entirely sufficient to support the general verdict of guilt a brief statement of undisputed facts is necessary as a background in considering the question involved.
In the afternoon of March 2, 1954, a raid was made on defendant's dress goods store by State and local police. The defendant was present throughout the raid. A search of the premises disclosed a mass of bookmaking material and gambling para-phernalia as well as cryptic accounts of the winnings and losses of various customers of the defendant, resulting from bets on basketball games and horse races. While the raid was in progress the police officers answered six incoming telephone calls. One who called said: A horse by that name was entered for the eighth race at Hialeah that day. In a second call a male voice reported that 'Chicken got knocked off' referring to a simultaneous raid on another gambling establishment operated by one 'Chicken' Roth. Others who called asked for the 'line' or the 'pro line' referring to scheduled professional basketball games and the odds for betting as determined by a gambling syndicate. It is conceded that the substance of these telephone calls was properly received in evidence on the principle of Commonwealth v. Prezioso, 157 Pa.Super. 80, 41 A.2d 350. During the raid two men came into the store. The first asked for a drink when he observed the police officers. When questioned he admitted a fondness for betting on horses and he had racing sheets and slips on his person evidencing bets which he had made. The second visitor, one Michael Radon, asked for the 'line' to which defendant replied 'I don't have no package for you today.' As Radon was leaving he was taken into custody and was questioned by Corporal Dane of the State Police.
Later in the day of the raid the defendant, under arrest, was seated in an auto-mobile in front of his store in the custody of R. E. Snyder, a police officer of the City of Allentown, when Corporal Dane with Michael Radon came up to the car. Orficer Snyder testified that Corporal Dane then said to Radon in the presence of the defendant: "Tell him what you told me' meaning Markwich.' And that in reply To the question 'Did he say with whom he made the bet?' Snyder's answer was: 'He said with Markwich.' Defendant's counsel objected to the admission of this testimony 'Unless the exact language is used.' Objection was also made to evidence of a bet made in the previous week 'as being too remote.' These were the only objections and both were overruled. In answer to the further question: 'Did Markwich say anything?' officer Snyder said: 'Markwich denied it and Radon insisted he had made the bet.'
Where, as in this case, specific objections are made to the admission of evidence, all reasons not enumerated in the objections must be taken as waived. Walker v. Walker, 254 Pa. 220, 98 A. 890; Huffman, now and for Use of Anderson v. Simmons, 131 Pa.Super. 370, 375, 200 A. 274; 2 Henry on Evidence, § 724. Since the only objections to the admission of the above evidence in the present case were specific, and the reasons advanced were invalid, the testimony is properly in the record. This must be taken as tacitly conceded by the defendant in this case, for in his appeal no reference is made to this testimony. The single trial error asserted by appellant in seeking a new trial is the admission of almost identical evidence in the testimony of Corporal Dane, who followed officer Snyder as a witness for the Commonwealth.
Dane testified that he took Radon to the police car where the defendant was seated and asked Radon to tell Markwich what he had just said to him. In response, according to Dane's testimony, Radon then said to defendant: In reply, Dane testified that Markwich said, 'You didn't bet with me.' This testimony was received in evidence over the defendant's general objection and the court on motion refused to strike it out. There was error in the ruling. The testimony was hearsay and although the statement attributed to Radon was made in the presence of the defendant there was no implied admission by the defendant of its truth under the rule of Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889, because Markwich categorically denied the charge. It is only when one accused of crime remains silent, although given the opportunity to speak, that an inference of the...
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