Com. v. Vecchiolli

Decision Date17 November 1966
Citation224 A.2d 96,208 Pa.Super. 483
PartiesCOMMONWEALTH of Pennsylvania v. Frank VECCHIOLLI, alias Frank Rossatti, Appellant, and Libby Pearl Vecchiolli. Appeal of Libby Pearl VECCHIOLLI.
CourtPennsylvania Superior Court

Joyce Ullman, Philadelphia, for appellant.

G. T. McKinley, Asst. Dist. Atty., George Kerestes, Jim Thorpe, for appellee.

Before ERVIN, P. J., and WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.

ERVIN, President Judge.

The defendants, Frank and Libby Vecchiolli, who are husband and wife, were found guilty by a jury of the crime of assault with intent to rob. After the disposition of the motion for new trial, listing a total of 52 reasons therefor, sentences of imprisonment were imposed and the defendants have appealed therefrom. No fault was found as to the charge of the court and all of the defendants' points for charge were affirmed.

The victim, Mary Chaplinsky, a 62-year-old woman, testified that on September 10, 1964 the two defendants gained access to her home sometime between nine and ten o'clock in the morning by telling her that they were friends of her son and that he had suggested that they stop to see her for a social visit if they were in town. She testified that after entering the house they assaulted her and that she screamed and they continued to beat her. She also testified that Libby pulled a gun out of her pocketbook and was holding it upon her and threatened to kill her while Frank continued to beat her. Her teeth were knocked out, her glasses were knocked off and she was left upon the floor of her kitchen when the neighbors came in and caused the defendants to flee. She was immediately taken to the hospital where she remained from Thursday morning until Saturday. Dr. Erskine testified that she had bruises and swelling involving the entire left side of her face; her nose was flattened and she was bleeding from her nose and also from her mouth and she had a bruise on her right knee which was quite painful. The defendants presented a defense of alibi. Mrs. Chaplinsky, the victim, in open court identified both of the defendants as her assailants.

In addition to the testimony of the victim, the Commonwealth presented one Dolores Shapiro, who admitted in direct examination that she was serving a sentence in the Carbon County prison for the crime of burglary and larceny of the Seaboldt home in Carbon County. This crime was committed in conjunction with George Bricker. She further testified that she first met the Vecchiollis in August of 1964 with George Bricker in a room at the Americana Motel in Philadelphia and that she then later, sometime in August 1964, met the Vecchiollis at her home in Philadelphia when George and Diane Bricker and Libby and Frank Vecchiolli drove there. She was permitted to testify under objection that 'They said they had just returned from upstate where they had been involved in a burglary.' She also met the Vecchiollis several times after that in August 1964 when they came to visit her in her home in Philadelphia. On September 9, on one of these occasions, she testified, the defendants were at her home and they planned to rob Mrs. Chaplinsky in Palmerton, Carbon County, and it was decided that the defendants would go early the next morning to Carbon County and go ahead with the plan. She testified that the defendants stayed at her home that evening and arose very early, approximately six a.m. the next morning, and left her home about seven o'clock in the morning. She described how they dressed. She also testified that later on in the afternoon of September 10, 1964, Libby Vecchiolli called her on the telephone and told her, 'Don't talk, things went wrong. I will call you later.' She also testified that in the early part of the evening of September 10, 1694 the defendants both came to her home and they then told her how the day had gone and corroborated the story told by Mrs. Chaplinsky. From the above recital it is clear that the evidence was sufficient to justify a verdict of guilty.

On their appeal the defendants have raised a number of questions which will now be disposed of.

The first two questions are concerned with the number of challenges to which the defendants were entitled on the charge of assault with intent to rob. The Act of March 6, 1901, P.L. 16, § 1, as amended, 19 P.S. § 811, provides that 'In all trials for misdemeanors, except for perjury, forgery and misdemeanors triable exclusively in the courts of oyer and terminer and general jail delivery, the commonwealth and the defendant shall each be entitled to six peremptory challenges; in the trial of felonies, other than those triable exclusively in the courts of oyer and terminer and general jail delivery, and in the trial of persons charged with perjury and forgery, the commonwealth and the defendant shall each be entitled to eight peremptory challenges, and in the trial of misdemeanors and felonies, triable exclusively in the courts of oyer and terminer and general jail delivery, the commonwealth and the defendant shall each be entitled to twenty peremptory challenges; * * *.'

The crimes triable exclusively in the court of oyer and terminer are set forth in the Act of March 31, 1860, P.L. 427, § 31, 17 P.S. § 391, as follows: 'The courts of oyer and terminer and general jail delivery shall have power--* * * (t)o try * * *

'3. All persons charged with sodomy, buggery, rape or robbery, their counsellors, aiders and abettors.'

Assault with intent to rob is not robbery and it is not specifically mentioned as one of the crimes triable exclusively in oyer and terminer. Jointly indicted defendants receive the same number of peremptory challenges as one defendant: Act of March 31, 1860, P.L. 427, § 40, 19 P.S. § 785; Com. v. Deutsch, 72 Pa.Super. 298, 308. Furthermore, there is no constitutional right to peremptorily challenge but the right is legislative in origin: Com. v. DiFilippo, 176 Pa.Super. 608, 109 A.2d 224.

The trial court refused to permit the defense to call an alibi witness because there was no prior notice of the name of the witness given to the district attorney in advance of the witness being called. The ruling was based upon Rule No. 312 of the Pa. Rules of Criminal Procedure, 19 P.S. Appendix, which provides as follows: '(a) When a defendant intends to offer the defense of alibi at trial, he shall at any time before or after indictment but not later than five days before trial, file notice with proof of service on the attorney for the Commonwealth, specifying his intention to claim such defense and giving the place where he will claim to have been at the time of the alleged offense and the names and addresses of the witnesses he intends to call in support of such claim.

'(b) Unless the interests of justice require it, on a defense of alibi a defendant may not call any witness not named in such notice, or any witnesses on an alibi different from that alleged in the notice.'

The appellants argue that the rule is unconstitutional in that it deprives a defendant of his right to present an alibi witness whose credibility should be for the jury to determine. In this case, at half past ten on the morning of the last day of the trial, the court gave defense counsel the opportunity to give the district attorney the names of the alibi witnesses that she intended to call and stated that if she would do this, they would be permitted to testify, thereby waiving the five-day rule heretofore mentioned. Defense counsel gave the names of two alibi witnesses to the district attorney but did not give the name of a third alibi witness even though that third witness was then present in court. When she later on in the day attempted to have the third alibi witness testify the court excluded that witness' testimony. Rule 312 does not absolutely prohibit the testimony of alibi witnesses. It imposes reasonable conditions for the presentation of such evidence. Statutes of this kind have generally been held to be constitutional. People v. Schade, 161 Misc. 212, 292 N.Y.S. 612; State v. Thayer, 124 Ohio St. 1, 176 N.E. 656, 75 A.L.R. 48; State v. Rider, 194 Kan. 398, 399 P.2d 564; State v. Kopacka, 261 Wis. 70, 51 N.W.2d 495, 30 A.L.R.2d 476. Furthermore, the manner in which the trial court in this case applied the sanction...

To continue reading

Request your trial
24 cases
  • Com. v. Hamm
    • United States
    • Pennsylvania Superior Court
    • February 17, 1984
    ...supra; Commonwealth v. Phillips, 267 Pa.Super. 526, 407 A.2d 35 (1979); Commonwealth v. Kubacki, supra; Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966); Commonwealth v. Cohen, supra; Commonwealth v. Giambrone, 183 Pa.Super. 283, 130 A.2d 254 (1957); Commonwealth v. Antico,......
  • People v. Merritt
    • United States
    • Michigan Supreme Court
    • January 29, 1976
    ...State, 499 P.2d 462, 464 (Okl.Cr.App., 1972); State v. Dodd, 101 Ariz. 234, 236, 418 P.2d 571, 573 (1961); Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 488, 224 A.2d 96, 99 (1966).9 M.C.L.A. § 768.20; M.S.A. § 28.1043.10 40 Wis.2d 379, 384, 161 N.W.2d 892, 895.11 People v. Cline, 8 Ill.Ap......
  • Taliaferro v. State
    • United States
    • Maryland Court of Appeals
    • February 10, 1983
    ...(1979); People v. Jackson, 71 Mich.App. 395, 249 N.W.2d 132 (1976); 16 State v. Flohr, supra, 301 N.W.2d 367; Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966); State ex rel. Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177 (1968). Subsection g of Md.Rule 741 permits the trial ......
  • Com. v. Oliver
    • United States
    • Pennsylvania Superior Court
    • October 6, 1977
    ...21] practice dictated by former Rule 312. Commonwealth v. Phoenix, 217 Pa.Super. 121, 268 A.2d 460 (1970); Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966). This "reliance" factor, in our consideration, militates strongly in favor of prospective application only of the Ward......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT