Com. v. Zeid

• Decision Date: 17 June 1965
• Citation: 206 Pa.Super. 13,211 A.2d 285
• Parties: COMMONWEALTH of Pennsylvania v. Abe ZEID, otherwise Bernard Puzas, Defendant-Appellant.
• Court: Pennsylvania Superior Court

Page 285

211 A.2d 285

206 Pa.Super. 13

COMMONWEALTH of Pennsylvania v. Abe ZEID, otherwise Bernard Puzas, Defendant-Appellant.

Superior Court of Pennsylvania.

June 17, 1965.

John N. Scales, Clarence F. McBride, Jr., Scales & Shaw, Greensburg, Caram J. Abood, Johnstown, for appellant.

Ferdinand F. Bionaz, Dist. Atty., W. Louis Coppersmith, Asst. Dist. Atty., Ebensburg, for appellee.

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

PER CURIAM:

The judgment of sentence is affirmed on the opinion of President Judge GRIFFITH, and the appellant-defendant is directed to appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with the sentence, or any part of which had not been performed at the time the appeal was made a supersedeas.

FLOOD, J., absent.

The opinion of President Judge GEORGE WEBSTER GRIFFITH, follows:

On June 11, 1964, defendant was convicted by a jury on three bills of indictment charging fraudulently making and uttering written instruments. On July 5, 1963 three checks, each in the amount of $157.00 and each drawn on Pittsburgh National Bank on the account of the Western Pennsylvania Teamsters and Employers Pension Fund with Bernard Puzas as payee were cashed in the City of Johnstown, one at the A & P Market on Southmont Boulevard, another at the Thorofare Market on Southmont Boulevard directly across the street from the A & P Market and the third at the Acme Market at Broad Street and Delaware Avenue. There is no dispute that all three checks and the endorsements thereon were forgeries and in each instance defendant was identified by an employee as the person who cashed the checks. Although the employees of the markets each made a positive identification of defendant, defendant testified that he was at his home in Monroeville, Allegheny County, Pennsylvania at the time of the alleged crimes. He also called a witness, Edward Zambo, who said he telephoned defendant at his home on the afternoon of July 5th and recognized his voice. This witness also testified that in July, 1963, defendant walked with a limp and used a cane. A county detective from Westmoreland County also testified as to the limp and the use of a cane. The witnesses for the Commonwealth in these cases said they did not notice a limp nor the fact that defendant carried a cane except that one witness did testify that he walked with a 'shuffle'.

The Commonwealth witnesses had testified fied that defendant endorsed the three checks in their presence and defendant submitted his handwriting samples to compare with the handwriting on the endorsements of the checks. One of the handwriting samples offered by defendant was excluded from evidence, it being his membership card in the Moose Lodge.

At the oral argument, defendant's counsel agreed that his motion in arrest of judgment should be dismissed but contends that defendant is entitled to a new trial for a number of reasons.

1. First, that the trial judge refused to sequester the three identification witnesses produced by the Commonwealth. The only thing in common with the testimony of these three witnesses was that each identified defendant as the person for whom they cashed a check. Each was testifying to a different transaction which occurred in different markets at slightly different times on the same date. The only reasons advanced by defendant at the trial for sequestration was 'that perhaps one's imagination would be revivied in the event an identification was made by one' and 'we are fearful that identification by the first, for instance, would bolster the courage of one who perhaps was not sure.' We are satisfied that under the circumstances the sequestration of the three identification witnesses offered by the Commonwealth was not required.

In Com. v. Kravitz, 400 Pa. 198, 218, 161 A.2d 861, 870, the court said:

'In nearly every criminal and civil case, one side or the other would like to have some or all of the witnesses of his opponent sequestered. The lack of adequate room space, the long delays which would inevitably be caused by sequestration and other practical considerations, makes sequestration of witnesses ordinarily imparactical or inadvisable, except in unusual circumstances.'

In the same case and on the same page in the footnote the court said that a request for sequestration should be specific and should be supported by reasons demonstrating that the interests of justice require it. Defendant's reasons for sequestration suggested no such unusual circumstances.

2. Defendant contends that the court erred in refusing defendant's motion for a continuance. The Grand Jury found a true bill on one indictment September 4, 1963 and on the other two indictments on December 3, 1963. The cases were listed for trial in December, 1963 and in March, 1964. Defendant failed to appear on either occasion. Since jury trials in criminal cases are held only in the months of March, June, September and December, these cases were again listed for trial for June Term, 1964. Defendant's bonding company had been notified of the date of trial three weeks prior thereto and defendant does not contend that the bonding company failed to notify him. Although defendant was represented by the same Westmoreland County lawyer in similar cases which had been tried in Greensburg the week before, he appeared in Cambria County without counsel on June 8, 1964, the trial date. As a result local counsel was appointed for him shortly before his cases were called for trial. A motion for continuance to the September Term, 1964, was refused in view of these circumstances. However, the case was continued to June 9th. At the time of the noon recess on June 9th, at the request of local counsel and after hearing one witness for the Commonwealth, the case was continued until June 10th, at which time counsel from Westmoreland County appeared and represented defendant throughout the trial together with local counsel. There was no contention whatever that defendant was not possessed of ample financial means to employ counsel at any time and if counsel was not thoroughly prepared to represent him this was solely the fault of defendant.

Defendant contends that if a continuance had been granted he would have been able to obtain a handwriting expert who would have testified that the endorsements made by the person who cashed the three checks in question in Cambria County were not in his handwriting. This case was argued on August 24, 1964. At that time the court told defense counsel that the decision on his motion for new trial would be deferred so that he might submit the checks in question together with samples of defendant's handwriting to the Federal Bureau of Investigation or other handwriting authority and, if a report were received by the court to the effect that the handwriting on the three checks in question was not in their opinion the handwriting of defendant, such report would receive serious consideration by the court in its decision on defendant's motion for a new trial. Defendant's counsel...