Commonwealth v. Burdell
| Decision Date | 30 August 1954 |
| Citation | 107 A.2d 739,176 Pa.Super. 219 |
| Parties | COMMONWEALTH of Pennsylvania v. Fred BURDELL, Appellant. |
| Court | Pennsylvania Superior Court |
Defendant was convicted, at a single trial, J. Frank Graff P. J. (specially presiding), in the Court of Oyer and Terminer, Butler County, at No. 2, as of June Term, 1952, of armed rebbery, and in the Court of Quarter Sessions of Butler County at No. 23, as of June Term, 1952, of aggravated assault and battery, and defendant appealed both convictions. The Superior Court, Nos. 125 and 126, April Term, 1954 Rhodes, P. J., held, inter alia, that since sentence had been suspended on conviction for aggravated assault and battery defendant's contention that indictment was defective was not subject to review and that evidence sustained conviction of armed rebbery.
Judgment of sentence affirmed.
E. O. Golden, Edward J. Steiner, Kittanning, Armand R. Cingolani, Butler, for appellant.
Clark H. Painter, Dist. Atty., Butler, Charles J. Margiotti, Sp. Prosecutor, v. j. Rich, Asst. Prosecutor, Pittsburgh, for appellee.
Before RHODES, P. J., and HIRT, ROSS, GUNTHER, WOODSIDE and ERVIN, JJ.
Appellant, Fred Burdell, has appealed from conviction and sentence on bill of indictment charging armed robbery, at No. 2, June Term, 1952, in the Court of Oyer and Terminer of Butler County. Appellant was sentenced to undergo imprisonment in the Western State Penitentiary for a term of not less than four years nor more than eight years, to be sent, in the first instance, to the Western Correctional Diagnostic and Classification Center, at Pittsburgh. Appellant was also indicted for aggravated assault and battery, at No. 23, June Term, 1952, in the Court of Quarter Sessions of Butler County. He was tried on both bills before the same jury which rendered verdicts of guilty. Sentence on bill No. 23 was suspended, but appellant has nevertheless appealed. In the absence of a judgment this conviction is not necessarily reviewable. Com. v. Kimmel, 172 Pa.Super. 76, 81, 92 A.2d 247.
Motions for new trial were refused by President Judge Graff of the Thirty-third Judicial District, specially presiding, who was the trial judge.
The court below fully considered the many reasons advanced for a new trial. Appellant's several contentions that the court erred in refusing his motions for a new trial will be considered as embraced in the statement of questions involved.
The Commonwealth established that on the afternoon of March 14, 1952, at approximately two o'clock, the home of Craig Saul, in the City of Butler, was entered and over $100,000 feloniously taken. Entry was gained to the house under the pretext of delivering a box to Mr. Saul. Two men who were carrying the box entered first; they were armed. Mrs. Saul was forced into a chair and then a third man came in the house. The latter went through all the rooms of the house, including the cellar. In the meantime, one of the men removed the telephone and Mrs. Saul was taken to the upstairs hall where she was required to sit on the stairs with her feet on the landing. She was held there throughout the robbery by the first man who had entered the house, with the help at times of the second man who had entered. Mrs. Saul suffered considerable injury at the hands of these armed men. Mrs. Saul was thus restrained for about a quarter of an hour. During this time a safe, which was located in the dining room on the first floor, was opened and approximately $100,000 in cash and bonds belonging to the Sauls was taken therefrom. Then the three men left the house. Mrs. Saul followed and observed them getting into the back seat of a large gray car with dark cloth covering the glass on the inside.
Appellant was identified by Mrs. Saul as being the person who first entered the house, and who was with her during the entire time she was held in custody by the perpetrators of the rebbery. Mrs. Saul partially identified the other participants.
(1) A primary contention of appellant is that the trial judge erred in admitting evidence of a crime committed in Allegheny County two days before the entry of the Saul home. Evidence of the extortion of $2,600 from Craig Saul by appellant in Allegheny County was admitted for the purpose of showing a course of conduct or plan or scheme on the part of appellant and others to feloniously take from Craig Saul his personal property, as well as to establish the identity of appellant. Craig Saul testified that on the morning of March 12, 1952, he went to Pittsburgh with three individuals, Jack Vergili, Willie Mendocini, and Sam Fratta. They registered at the Roosevelt Hotel. A party was arranged by Mendocini. The group remained at the hotel during that day; and at ten o'clock in the evening Saul wanted to go home and called his brother, who came to the hotel and directed the other three men to take him the his home in Butler. On the pretext of taking Saul to Butler the group drove toward Rankin, Allegheny County, where appellant, in his police uniform, stopped Saul's Cadillac automobile, which was being operated by Mendocini, and accused them of driving through a stop sign and of being engaged in the numbers business. Appellant indicated that he would confiscate Saul's automobile unless he was ‘ fixed.’ Saul offered appellant $100. The sum of $2,600 was finally extorted from Saul; this was all the money that he had in his wallet at the time.
The Commonwealth also showed that Vergili and Fratta were friends of Saul, who had not previously met appellant, and that Mendocini and appellant had been friends from childhood. The jury could believe that, on the same evening the group was at the Roosevelt Hotel, Mendocini made a telephone call from the hotel to appellant at his Braddock home. The testimony further disclosed that Saul's companions knew that he was in the habit of having large sums of money on his person and in a safe in his home.
We agree with the court below that the offenses were so closely connected that the evidence of the one committed in Allegheny County was properly received in the trial of appellant in Butler County. Not only did the Allegheny County occurrence tend to prove a design or plan to rob Saul, but it also had a logical bearing upon the identity of appellant in the robbery at the Saul home on March 14, 1952. It may be said that the two occurrences constituted closely connected crimes for a common purpose. Com. v. Ransom, 169 Pa.Super. 306, 314, 82 A.2d 547.See, also, Com. v. Fugmann, 330 Pa. 4, 20, 198 A. 99; Com. v. Chalfa, 313 Pa. 175, 178, 169 A. 564.
(2) Did the trial judge err in limiting the number of peremptory challenges to ten?
Under section 1 of the Act of March 6, 1901, P.L. 16, as amended, 19 P.S. § 811, in the trial of misdemeanors and felonies, triable exclusively in the courts of oyer and terminer and general jail delivery, a defendant is entitled to twenty peremptory challenges. At appellant's trial a stipulation of counsel was entered into as follows:
‘ By Mr. Painter: It is stipulated by and between counsel for the Commonwealth and counsel for the defendant, Fred Burdell, that the challenges, peremptory challenges, in this case, shall be limited to ten for each side.
‘ By Mr. Cingolani: Counsel for the defendant agrees.’
Appellant now contends that the trial judge erred in permitting such a stipulation to be entered and in limiting the number of peremptory challenges accordingly.
In Com. v. Antico 146 Pa.Super. 293, 314, 22 A.2d 204, 215, this Court said: . Defendants were entitled to a trial by a fair and impartial jury, but not to a trial by any particular juror or jurors.'Appellant could waive such a statutory right, and appellant was bound by the action of his trial counsel in this respect. See Com. v. McMurray, 198 Pa. 51, 60, 47 A. 952.
(3) Was it reversible error to admit in evidence a tape recording after appellant's counsel, with appellant's approval, withdrew all objections?
While appellant was incarcerated in the state police barracks at Butler, a tape recording was made of conversations between appellant and Vergili, one of the men allegedly involved in the robbery for which appellant was being tried. They occupied adjoining cells. On cross-examination appellant was asked whether he had made certain statements to Vergili. He denied making any of the statements concerning which he was asked. The Commonwealth, for the purpose of contradiction of appellant, offered a tape recording made when he and Vergili were confined in the police barracks. Appellant's counsel objected to the admission of the tape recording. The trial judge reled that those portions of the tape recording which related to material matters about which appellant had been questioned were admissible.
Appellant's counsel was furnished with a copy of the transcript of the tape recording. Thereafter appellant's counsel stated upon the record: ‘ Having read the statement, a copy of which was furnished by * * * Commonwealth's counsel, having discussed the matter with the defendant, and he having refreshed his recollection, therefore admits the statement, and withdraws all objection to the admission of the entire transcript.’
The entire conversation between appellant and Vergili was then admitted in evidence and the recording played to the jury. An extensive argument is now presented on appeal by counsel for appellant to the effect that the recording was inadmissible for numerous reasons, and that failure to exclude it on the court's own motion was fundamental...
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