Commonwealth v. Balles

• Decision Date: 09 November 1948
• Citation: 62 A.2d 91,163 Pa.Super. 467
• Parties: Commonwealth v. Balles, Appellant
• Court: Pennsylvania Superior Court

62 A.2d 91

163 Pa.Super. 467

Commonwealth v. Balles, Appellant

Superior Court of Pennsylvania

November 9, 1948

Argued September 27, 1948

Appeal, No. 122, Oct. T., 1948, from judgment of Oyer and Terminer, Chester Co., Nov. T., 1945, No. 180, in case of Commonwealth v. George W. Balles, Jr.

Indictment charging defendant with statutory rape. Before Harvey, J.

Verdict of guilty of attempt to commit statutory rape and judgment of sentence entered thereon. Defendant appealed.

Fred T. Cadmus, 3rd, for appellant.

Henry Stuckert Miller, Assistant District Attorney, with him John M. Kurtz, Jr., District Attorney, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Fine, JJ.

OPINION

HIRT J.

For reasons stated in Commonwealth v. Balles, 160 Pa.Super. 148, 50 A.2d 729, we reversed judgments of sentence and granted new trials on four charges upon which defendant had been convicted in Montgomery County. In addition to these convictions, which were the subjects of the first appeal, defendant had been found guilty by the same jury of adultery and indecent assault on the identical evidence upon which he was found guilty of statutory rape of Joyce Myrtle Owens, an eleven-year-old girl. Thereafter, on February 4, 1947, upon facts alleged in defendant's petition, a change of venue was ordered from Montgomery County to Chester County for the retrial of all pending charges against the defendant. At the second and also at the third trial of the defendant held in Chester County, the jury disagreed and was discharged. In the present trial, defendant was before the court on the single charge of statutory rape of Joyce Myrtle Owens. The jury found him guilty, but only of the attempt to commit the crime of statutory rape laid in the indictment, and he was sentenced. In the prior appeal on our review of the conviction of defendant at the first trial, we had no doubt as to his guilt on this same charge of statutory rape, and the jury, on the evidence before it in this the fourth trial, well might have found him guilty of the consummated act and not of the attempt merely. Our opinion in the former appeal refers to the facts which were established in the present trial also; we need not review them here in their sordid detail. The sufficiency of the evidence, to sustain the present verdict of guilty beyond all reasonable doubt, is not, nor can it be questioned. We reversed the judgment in the first appeal because defendant's basic rights had been invaded by the Commonwealth in the conduct of the trial. It is contended here that defendant is entitled to a fifth trial of this case for similar reasons, specifically, because in a number of respects alleged, he did not receive a fair and impartial trial. With this we cannot agree; the judgment of sentence will be affirmed.

Defendant has assigned as prejudicial error the criticism of his counsel by the trial judge during the cross-examination of the young girl, whom we will refer to as Joyce (Record, page 147). In that instance counsel was criticized by the court for attempting to read into the record the testimony of this Commonwealth witness as given at a former trial when there was no variance in her testimony and none was alleged. The trial judge reminded counsel that the time of an alleged prior intercourse of defendant with Joyce, which was then the subject of cross-examination, in relation to the date of the first trial, was not disputed. After the discussion, the court stated: "It is agreed that [the first trial was] two months after the occurrence". Thereupon defendant's counsel stated: "It was a matter of record and I apologize to the court; I accept your Honor's remarks at this point". Defendant counsel then clearly did not consider the incident prejudicial and no exception was taken to the remarks of the court. The trial judge, later, correctly instructed defendant's counsel as to the proper method of contradicting a witness by the record of prior testimony. But notwithstanding counsel's apparent acquiescence in the ruling of the court, he persisted in his attempts to read into the record other portions of Joyce's testimony given in a former trial, without any offer to show that it in any way contradicted her testimony given at the pending trial. Counsel's persistence in this respect invited other criticisms of his conduct by the trial judge. Even where exception was taken to these remarks of the trial judge there was no motion to withdraw a juror. Defendant was not harmed. Under the circumstances the criticisms were justified and the court cannot be charged with prejudicial error because of them. Cf. Fischer v. Commercial Nat. Bank, 321 Pa. 200, 184 A. 57. The cases relied upon by defendant, viz.: Commonwealth v. Stallone, 281 Pa. 41, 126 A. 56; DiBona v. Philadelphia Transp. Co., 356 Pa. 204, 51 A.2d 768, have no application.

Similarly there is no merit in defendant's contention that he was prejudiced by statements of the District Attorney in two instances in closing to the jury. The remarks are not made the subject of assignments of error nor are they referred to in the statement of questions involved. Nevertheless we have examined them and agree that the remarks were not improper under the circumstances and did not in fact, nor were they intended to, inflame the jury. The trial judge in his charge refers to these remarks (pp. 422-424; 449-450, of the record) in their proper light and from an excess of caution, asked the jury to disregard them.

Defendant testified that Joyce, the young girl involved, had been punished for misconduct and that she, in retaliation, had threatened "to get even" with the defendant. It was argued that this punishment supplied a motive for Joyce to give, what was alleged to be, perjured testimony on the trial of this case. Defendant in this connection contends that there is reversible error in the rulings of the trial judge limiting his counsel's cross-examination of Joyce. She had testified that defendant had intercourse with her on prior occasions and always in his living quarters in the school building. The court sustained the Commonwealth's objection to her testimony that Mrs. Balles was present on one occasion when intercourse occurred. The court also sustained an objection by the Commonwealth to a question put to Joyce as to whether she had ever been punished for masturbation. Since the credibility of Joyce, an important witness for the Commonwealth, was directly in issue, the court well might have allowed defendant's counsel far greater latitude in cross-examining her to impeach her credibility, than is shown by the record. However, under the circumstances we feel that no reversible error was committed inasmuch as the answers sought to be elicited by the defendant from Joyce did actually come from her elsewhere in the course of her examination or were testified to positively by the defendant. Joyce elsewhere in her testimony stated that Mrs. Balles was present when the defendant had intercourse with her and there was no motion to strike out this testimony. The defendant testified positively that Joyce had been punished for masturbation; and that statement was not stricken from the record and it was not denied.

In Montgomery County, at the first trial in March 1946, the defendant was tried on the present charge and also for adultery with Joyce on Bill 188-9, and on Bill 188-3 for indecent assault. The jury found the defendant guilty of the adultery and of indecent assault on the identical facts offered to convict him of statutory rape of the child on January 12, 1946. As to the adultery verdict sentence was "suspended" on August 6, 1946. In reality this order was not a suspension of sentence, for no sentence had been imposed. The order was one merely deferring sentence. As to indecent assault, defendant's motion for a new trial was treated as a motion...