Commonwealth v. Bonomo
| Decision Date | 28 May 1959 |
| Citation | 151 A.2d 441,396 Pa. 222 |
| Parties | COMMONWEALTH, Appellant, v. Ralph BONOMO, Appellee (four cases). |
| Court | Pennsylvania Supreme Court |
[Copyrighted Material Omitted]
Albert H. Aston, Dist. Atty., Arthur Silverblatt Wilkes-Barre, for appellant.
Conrad A. Falvello, Rocco C. Falvello, Hazleton, for appellee.
Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, and McBRIDE, JJ.
The Commonwealth charged that the defendant had carnal knowledge of his niece (Marion Holliday), aged 14, on the 30th of December, 1956, thus resulting in an indictment for incestuous adultery and a separate indictment for statutory rape. A third indictment charged that on May 19, 1957, he contributed to the delinquency of Marion, and a fourth charged the same offense in respect of a young lad, Donald Meier, aged 15. The sufficiency of the evidence has not been attacked and it is unnecessary that we set it forth at length. It is stated in the opinion of the Superior Court, which is reported at 187 Pa.Super. 521, 144 A.2d 752. All charges were tried together resulting in a verdict of guilty. Motions for new trial and in arrest of judgment were overruled and the defendant was sentenced on the indictment for rape to imprisonment for not less than two nor more than five years. Sentences on the other indictments were suspended and the defendant was ordered to pay costs. Upon appeal to the Superior Court all judgments of conviction were reversed. We allowed an appeal because of the importance to the administration of criminal justice of one of the questions involved. However, even though this is an appeal from the Superior Court, the whole proceeding is brought before us and we must consider it. Act of June 24, 1895, P.L. 212, § 9, par. 4, 17 P.S. § 195.
At the trial police officers were permitted, over objection, to testify in detail as to statements made to them by Donald Meier (in the absence of the defendant) during the course of their investigation. These statements were incriminatory of the defendant and their admission constituted prejudicial hearsay unless they were admitted for some legitimate purpose. The trial court, while carefully ruling that the statements were not admitted to show their truth, nevertheless held them to be admissible on the ground stated by the prosecuting attorney, that they were 'facts elucidated in the course of an investigation by the state police'.
It is true that this testimony related only to the two charges of corrupting morals of the minor children and had nothing to do directly with the charges of statutory rape and incestuous adultery. The trial court, in its disposition of the motion for new trial, held that the testimony was not hearsay because it was not offered for the purpose of proving the truth of the statements but 'merely to outline to the jury the investigation made by the officer which culminated in the arrest of the defendant'. For support the Court quotes from our decision in Commonwealth v. Ricci, 332 Pa. 540, 3 A.2d 404, in which we said 'Whenever the fact that the utterance was made is in issue rather than the truth of what was said, the utterance is not hearsay'.
We reiterate that statement; but the difficulty with it in the present context is that the investigation was not 'in issue'. The trial court also supported the admission of such testimony 'because it showed that the officer acted in good faith and with reasonable cause'. The good faith or the reasonableness of the prosecution was not in issue either. The policemen were not on trial for their actions and they were not being sued for slander. Hence the fact that the statements were made out of court and out of the presence of the defendant were incompetent and, as the trial court correctly stated, they were inadmissible hearsay to prove the truth of the facts stated. The error was compounded in the charge of the court in which the out-of-court statements of Donald Meier were referred to as 'facts', were repeated in detail, and the jury was informed that they were received 'in evidence to show that statements were made on the basis of which this prosecution was initiated'. There was no justification for the admission of these statements and the Superior Court has correctly disposed of the point.
The defendant called a witness for the stated purpose of showing the bad reputation of the girl for chastity and morality while she was living in Hamburg, Pennsylvania, in 1955. The offense is alleged to have been committed while she was living at White Haven, Pennsylvania. The trial judge excluded the testimony on the ground that defendant is restricted to showing bad reputation in the community in which she lived at the time of the offense. Obviously the evidence, if admissible, was important to the defendant on the charge of statutory rape. The Superior Court has correctly held that the admissibility of such evidence does not depend upon any hard and fast rule in a case where a minor has recently come into the community in which the offense is alleged to have occurred and much must be left to the discretion of the trial judge in this case. That discretion was abused since a rigid application of the rule would, under the circumstances of this case, defeat the right of the defendant to have it considered under the specific provisions of the applicable Act of Assembly of June 24, 1939, P.L. 872, § 721, 18 P.S. § 4721.
In its opinion the Superior Court correctly stated [187 Pa.Super. 521, 144 A.2d 756]:
'Certainly it was not the intention of the legislature to limit the proof of bad reputation for chastity to a place to which the party had just become a resident and where it was impossible to have established a reputation of any kind.'
We came then to the important question which moved us to bring the case here. The defense was an alibi. In support of it the defendant presented witnesses to show, in respect of the charges against him involving his conduct on December 30 and January 2, that he was at Danbury, Connecticut, on both of those days and could not have been present as the Commonwealth's evidence would indicate. It is sufficient to say that if his evidence were believed he could not have been properly convicted.
Defendant complained that the trial judge did not tell the jury that the alibi evidence alone may be sufficient to raise a reasonable doubt. No such request was specifically made. The trial judge, in answering this contention, cited Commonwealth v. Kettering, 180 Pa.Super. 247, 252, 119 A.2d 580, 582, where the Superior Court, quoting from Commonwealth v. Woong Knee New, 354 Pa. 188, 214, 47 A.2d 450; Commonwealth v. Jordan, 328 Pa. 439, 446, 196 A. 10, and Commonwealth v. Stein, 305 Pa. 567, 571, 158 A. 563, said:
'The jury must also be instructed that 'the evidence in support of the alibi may, with other facts in the case, raise the reasonable doubt of guilt which entitles a defendant to acquittal'.'
We cannot say, in the absence of a sufficient request to so charge, it was error not to say that the evidence of alibi may itself raise such reasonable doubt. However, it is obviously true that it has that capacity. Since it is universally conceded that the alibi, standing alone, may warrant the jury in believing the defendant to be innocent, then certainly it must also be conceded that, standing alone, it may be sufficient to warrant them in having a reasonable doubt of his guilt.
The trial judge did not instruct the jury that the defendant had the burden of proving alibi only by a preponderance of evidence. He did refer to the alibi as a 'defense', told the jury that
On motion for new trial complaint was made that the court should have instructed the jury that the burden was upon the defendant to prove the alibi by a fair preponderance of the evidence but not beyond a reasonable doubt in addition to the instruction that a reasonable doubt as to any essential element of the Commonwealth's case required an acquittal; in other words, the difference between the quantum of proof necessary to support the defense of alibi as compared with the burden of proof of the Commwealth. In answer to that contention the trial judge, in his opinion, says:
'The trial Judge deliberately and purposely made no reference whatsoever to the existence of any burden upon the defendant to prove the defense of alibi.'
He followed the suggestion of Chief Justice Maxey in Commonwealth v. Barnak, 357 Pa. 391, 54 A.2d 865.
Upon appeal to the Superior Court the judges thereof were divided on the question as to the necessity of advising the jury affirmatively that an alibi does not have to be supported by proof beyond a reasonable doubt but only by a fair preponderance of the evidence.
The history of what has become known as the defense of alibi has been troublesome in the administration of criminal justice throughout the country. In criminal cases there is a continuing presumption of innocence which does not exist in civil cases. Hence, in the latter, although the...
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