Commonwealth v. Blose
| Decision Date | 17 January 1947 |
| Citation | 50 A.2d 742,160 Pa.Super. 165 |
| Parties | Commonwealth v. Blose, Appellant |
| Court | Pennsylvania Superior Court |
Argued November 21, 1946.
Appeal, No. 8, March T., 1947, from judgment of O. & T Mifflin Co., Oct. T., 1945, Nos. 1 and 2, in case of Commonwealth v. Ellsworth Blose.
Indictments charging defendant with larceny and receiving and burglary of named articles. Before Uttley, P. J.
Verdicts of guilty on all counts and judgment of sentence on indictment charging burglary. Defendant appealed.
Paul S. Lehman, for appellant.
Harold W. Houck, District Attorney, for appellee.
OPINION
Two indictments were found against appellant; at No. 1 October Sessions, 1945, he was charged with larceny and receiving; and at No. 2 October Sessions, 1945, with burglary. They were tried together, and in separate verdicts he was convicted of all charges. He was sentenced only upon the burglary indictment, and by one appeal he seeks a review of both cases.
At the outset we are obliged to note that his appeal is defective. Where two indictments are tried together, separate verdicts rendered, and sentences imposed, a separate appeal from each judgment must be taken. Com. v. Schollenberger, 17 Pa.Super. 218; Com. v. Falls, 102 Pa.Super. 392, 156 A. 894. Furthermore, no appeal lies unless and until a sentence has been imposed. Com. v. Jung, 86 Pa.Super. 569; Com. v. Torr, 111 Pa.Super. 178, 169 A. 238. Consequently, this appeal can apply only to the burglary charge. So far as it was intended to relate to No. 1 October Term, 1945, it will be quashed.
Since the case must be tried again we shall state only a bare outline of the evidence. On February 26, 1945, the American Legion Country Club, located twenty-three miles from Lewistown, Mifflin County, was broken into and ransacked. Among the missing items were five slot machines, a music box and stand, $ 516 in cash, and 83 bottles of liquor. On March 12, 1945, appellant was arrested at his home at Maryland, and upon his premises were found five slot machines and a music box, and in his automobile four whiskey bottles, two filled, one partially filled, and one empty. Appellant was a former resident of Mifflin County, and had visited Lewistown on the week-end of the burglary. Appellant relied upon an alibi, claiming that during the whole of the night of the burglary he attended a party at the home of his sister-in-law in Klondike, twenty-five miles from the country club. His further defense was that his physical infirmities were such that it was impossible for him to carry and load heavy articles such as slot machines; and, also, that his automobile was too small to transport the stolen articles with his family and certain described personal effects and household furniture. He accounted for the presence of the stolen property upon his premises by the statement that upon his arrival at his Maryland home he was accosted by two soldiers, who said they were friends of his brother, and requested his permission to store the slot machines and music box with him; and for his consent rewarded him with five bottles of whiskey.
I. The Commonwealth called an officer of the Maryland State Police who had aided in apprehending appellant. For that purpose he had used a photograph, and the district attorney asked the witness: "Is that photograph which you had an exact likeness of the defendant here?" The officer answered: "He is a little better looking now, because it was a penitentiary photograph." (Emphasis added). Appellant immediately objected, and moved for the withdrawal of a juror. The motion was overruled, but the court then and in its charge instructed the jury to disregard the testimony. It must be conceded that if the situation was curable by admonition, the instructions were adequate for that purpose.
The only inference which could be drawn from the testimony was that appellant was a former convict. [1] It was incompetent and highly prejudicial testimony, and although the court in its opinion denying a new trial reports that the case was tried in an ideal atmosphere, without altercation or feeling between appellant's counsel and the district attorney, we are of opinion that its instructions did not and could not eradicate the effects of the statement. The environment of a trial does not furnish a final and infallible criterion by which the impact of prejudicial statements can be judged. Certainly the quiet and dispassionate utterance of a trained and obviously unwarped witness, whose official position would itself inspire confidence, is patently more devastating and lasting than a shrill accusation by a partisan and reviling witness. The testimony must have left a deep and lasting impression of truth, and, for reasons presently to be developed, we cannot confidently assert that the instructions wholly abstracted it from the interplay of impressions and convictions which generated the jury's ultimate conclusion.
The decision of the question is a delicate operation. It requires recognition of, without definitively drawing, the imponderable line where the broad legal discretion lodged in trial courts ends and the more objective review of appellate tribunals begins. Furthermore, the doctrine of harmless error, which the court below relied upon in refusing a new trial, must be given full play. That rule is a valuable adjunct to our modern law. It immeasurably strengthened our jurisprudence by freeing it from the vicious grip of strangling technicalities which too long impeded and disgraced it, and especially the administration of justice in our criminal courts. Its purpose is to cast upon the party complaining of technical or procedural errors the burden of showing that they have substantially affected his legal rights.
But the doctrine is not a mere mechanical formula to be applied automatically, indiscriminately, and against the defendant, whenever a record contains the necessary minimum evidence legally sufficient to support a conviction. In such cases there is always the possibility, often the probability, that the prejudicial statement entered into the judgment, and the harmless error rule is not intended to save such a verdict from appellate condemnation. Nor is it a mathematical equation so inflexible that when the sum of the unobjectionable evidence equals conviction an appellate court must assume that the incompetent and prejudicial testimony did not enter into the calculation. On the other hand, in that class of cases of which Com. v. Fugmann, 330 Pa. 4, 198 A. 99, and Com. v. Petrillo, 341 Pa. 209, 19 A.2d 288, are impressive illustrations, where the evidence of guilt is overwhelming, the rule has been applied and the conviction sustained, thereby promoting the cause of justice without harm to the defendant's legal right to a fair trial.
Between those two extreme categories lie cases from which a guiding rule cannot be readily deduced. A review of them would prove unprofitable, for, if they point to any discernible direction, at most they teach only that the determination of the question whether prejudice indelibly and hurtfully permeated the trial depends in the final analysis upon the facts of the individual case. The best approach to a rule we have found is the recent pronouncement by Mr. Justice Rutledge in Kotteakos v. United States, 328 U.S 750, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557. After analyzing the Act of Congress (28 U.S.C. A. §...
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