Com. v. Staino

• Decision Date: 12 November 1964
• Citation: 204 A.2d 664,204 Pa.Super. 319
• Parties: COMMONWEALTH of Pennsylvania v. Ralph STAINO, Jr., Appellant. COMMONWEALTH of Pennsylvania v. John BERKERY, Appellant.
• Court: Pennsylvania Superior Court

Page 664

204 A.2d 664

204 Pa.Super. 319

COMMONWEALTH of Pennsylvania v. Ralph STAINO, Jr., Appellant.

COMMONWEALTH of Pennsylvania v. John BERKERY, Appellant.

Superior Court of Pennsylvania.

Nov. 12, 1964.

Rehearing Denied Dec. 2, 1964.

Application for Allocatur Denied Jan. 12, 1965.

John Patrick Walsh, Francis T. Anderson, Philadelphia, for appellants.

C. J. Friedberg, Asst. Dist. Atty., H. W. Lightstone, Dist. Atty., Pottsville, for appellee.

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

ERVIN, Judge.

These two appeals were argued together and will be disposed of in one opinion.

During the night of August 7, 1959 the home of John B. Rich, 1801 Mahantongo Street, Pottsville, Pennsylvania, was burglarized and the sum of $478,000 in U.S. currency and jewelry worth $17,000 were taken from a safe which had been 'peeled' by the burglars. Mr. Rich and his wife were at the time vacationing in Europe and their home in Pottsville was left unoccupied. A caretaker, on the afternoon of August 7, 1959, entered the house and found nothing wrong. On the afternoon of August 8, 1959 the caretaker again entered the house and found that someone had broken into the house and had forced open the door of a safe. The caretaker, upon discovery of the burglary, informed the son of Mr. John B. Rich, who then made a preliminary investigation and called the local police. When the investigation was made it was discovered that two pillow cases had been removed from the pillows on a bed in an upper floor. Mr. John B. Rich and his wife returned from Europe about Labor Day, 1959, and he reported to the police that his safe had contained some jewelry of the approximate value of $17,000 and cash in the form of bank notes in the approximate amount of $3,500, all of which were missing.

Sometime during the month of January 1960, Richard Francis Blaney, a brother of Vincent Blaney, told Captain Ferguson, of the Philadelphia Detective Bureau, who the burglars were and details of the burglary, ¹ as a result of which the appellants, John Berkery and Ralph Staino, Jr., were subsequently arrested, tried and found guilty on separate bills of indictment charging burglary and larceny, each count stating that the sum of $3,500 in U.S. currency, together with certain jewelry, had been stolen.

At the trial Mr. John B. Rich was called by the Commonwealth and he testified that when he left for Europe the safe had in it cash 'in the amount of about three thousand--thirty-one or thirty-two hundred dollars which I never counted, and many other--and some inter-company bonds and stocks, and cancelled checks. * * *' He also testified that the cash was in five, ten and twenty dollar bills.

Robert Poulson, one of the burglars, was arrested and on April 3, 1960 gave a complete statement to the police in which he implicated the two appellants and gave complete details of the crime. ² Poulson later on repudiated the confession. Poulson's statement or confession was read to Staino, Jr. and he made 'no answer and no comment.'

Richard Francis Blaney was called by the Commonwealth and he testified that he was a brother of Vincent Blaney, one of the burglars, and he further testified that Berkery had admitted to him that he had participated in the burglary of the Rich home and that there was $478,000 taken, out of which he got better than $100,000 himself, as a result of which he had been able to indulge in a large number of expensive luxuries, such as a $10,000 pleasure trip to California, a $2,000 mink stole for his wife and a brand new $5,000 gold-like Lincoln automobile.

Blaney testified that Berkery took him to Pottsville and showed him where the burglary had taken place and gave him complete details of the burglary. The visit to Pottsville was made in preparation for another burglary which was to be later executed in order to obtain the bonds and securities which had been left in the safe at the time of the August 7, 1959 burglary. The second burglary never occurred because of the incarceration of Richard Blaney for some prior offense.

Richard Blaney also testified that he had a conversation with Ralph Staino at the Colony Motel in Atlantic City in the middle of August 1959, in which Staino admitted that he had taken part in the Pottsville burglary of the John B. Rich house on August 7, 1959. ³

The Commonwealth also called Alfred Ronconi, who testified that he knew Ralph Staino well and that in January or February of 1960 Staino came to his place of business with a sum of money contained in a shirt box; that Staino asked Ronconi to take the money to the bank and have it changed into one hundred dollar bills; that in accordance with the request he took the money to a teller in a bank, with whom he was acquainted, that the teller changed the money into one hundred dollar bills in the amount of $10,000; that there was more money in the box in an amount unknown but that the teller refused to change more than $10,000 worth without the signature of the owner and that he returned the one hundred dollar bills and the unchanged money to Staino. The banker was also called and testified about this transaction.

There was also testimony to show the expenditure of considerable money by both appellants for such things as automobiles, a new house and the furnishings therefor, a trip to California, etc.

After verdicts of guilty on both counts and the disposition of post-trial motions, prison sentences were imposed and the present appeals taken.

The questions argued on appeal may be summarized under two headings: (1) Was the rule against impeachment of a party's own witness violated; (2) Was the jury confused by the apparently inconsistent evidence and by the charge of the trial judge.

These questions will be considered in the order above stated.

John B. Rich did testify that there was only $3,100 or $3,200 in his safe. The bills of indictment did state that the amount of U.S. currency stolen was $3,500. The Commonwealth also introduced much other evidence indicating that a large sum of money had been stolen. In our judgment, the trial judge committed no error in permitting the Commonwealth to introduce evidence of sudden wealth acquired by the appellants, notwithstanding the testimony of its witness, John B. Rich, to the contrary.

At the outset it should be stated that what the Commonwealth did in this case did not constitute impeachment of its own witness. There is a clear distinction between impeachment of one's own witness by direct attack on his credibility and a contradiction of his testimony by other independent evidence. The latter does not constitute impeachment and has been permitted for a long time.

This distinction is well stated in an opinion by the Supreme Court of Missouri in Talley v. Richart, 353 Mo. 912, 185 S.W.2d 23, 26, in the following language: 'It is well settled a party may contradict his own witness by independent evidence showing facts to be different from those testified to by such witness. * * * Such rule does not violate the general rule that one may not impeach his own witness because to contradict is not to impeach. The terms are not synonymous. Impeachment is directed to the credibility of the witness for the purpose of discrediting him. It ordinarily furnishes no factual evidence. Contradiction, on the other hand, is directed to the accuracy of testimony and supplies additional factual evidence to be considered along with such testimony. Such evidence as is relevant to the issues may not be excluded because it contradicts another witness called by the same party, whether such witness is friendly or hostile.' To the same effect see Brock v. Robinson, 97 N.H. 334, 88 A.2d 306, 308; Northern Pacific Railway Co. v. Everett, 232 F.2d 488, 491 (U.S. Court of Appeals, 9th Circuit); State v. Timm, 244 Wis. 508, 12 N.W.2d 670, 673; In re Hamm's Estate, 186 Okl. 610, 99 P.2d 895, 899; Manning v. State, 188 Miss. 393, 195 So. 319, 320; Texas Employers' Ins. Assoc. v. Cecil, Tex.Civ.App., 285 S.W.2d 462, 465; Dickerson v. Shepard Warner Elevator Co., 287 F.2d 255, 260 (U.S. Court of Appeals, 6th Circuit); Civil v. Waterman Steamship Corp., 217 F.2d 94, 99 (U.S. Court of Appeals, 2nd Circuit).

In England (by the end of the 18th century) the doctrine was clearly laid down that one's own witness could always be contradicted by others. In the United States, except for an occasional earlier ruling, the same result has been reached. Wigmore, Evidence, 3rd ed., Vol. III, § 907.

Pennsylvania is in accord with this ruling. Evans v. Penn Mutual Life Ins. Co., 322 Pa. 547, 559, 186 A. 133, footnote 22. See also Henry, Pa. Trial Evidence, 4th ed. (1953), Vol. 2, § 808, and the cases therein cited; Com. v. Gurreri, 197 Pa.Super. 329, 333, 334, 178 A.2d 808; Com. v. Gomino, 200 Pa.Super. 160, 188 A.2d 784.

In the present case the Commonwealth did not seek to cross-examine Mr. Rich in order to show that he had, at some other time, stated the amount stolen to be a much larger sum nor did it endeavor to prove by other witnesses that he had at some time made contrary statements. The Commonwealth, on the contrary, produced other independent evidence to show that the amount stolen was a much larger sum than that stated by Mr. Rich. This it was permitted to do and the trial court committed no error in permitting the Commonwealth to introduce this evidence.

We do not believe that the jury was confused as to the real issues in this case. Appellants argue that the district attorney deliberately followed a plan of trial which he had reason to know would necessarily confuse the jury. We think the Commonwealth had no alternative but to present for the consideration of the jury all of the relevant evidence, even though it necessarily involved a contradiction of the victim of the crime on one part of his testimony. John B. Rich was the victim of this burglary and larceny. Without his testimony the Commonwealth...