Commonwealth v. Downer .

CourtSuperior Court of Pennsylvania
Writing for the CourtARNOLD, Judge.
PartiesCOMMONWEALTH v. DOWNER (five cases).
Decision Date18 November 1946

159 Pa.Super. 626
49 A.2d 516

COMMONWEALTH
v.
DOWNER (five cases).

Superior Court of Pennsylvania.

Nov. 18, 1946.


49 A.2d 517

COPYRIGHT MATERIAL OMITTED.

Appeal Nos. 45-49, April term, 1947, from the judgments and sentences of the Court of Quarter Sessions of Allegheny County at Nos. 257, 267-270, March Sessions, 1945; G. Malcolm McDonald, Judge.

Louis Downer was convicted upon indictments charging impersonation of a public officer, blackmail or extortion, blackmail by accusation of a heinous crime, and conspiracy with others to commit this last offense, and he appeals.

Sentence imposed on each indictment reversed and set aside, and record remitted with directions to proceed to sentence the defendant anew on three of indictments.

49 A.2d 518

Harry I. Glick and O. Hicks Friedman, both of Pittsburgh, for appellant.

Artemas C. Leslie, Dist. Atty., and Earle R. Jackson, Asst. Dist. Atty., both of Pittsburgh, for appellee.

Before BALDRIGE, P. J., and RHODES, HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ.

ARNOLD, Judge.

The defendant was convicted upon indictments charging impersonation of a public officer; 1 blackmail or extortion 2 (two indictments); blackmail by accusation of a heinous crime 3 ; and conspiracy with others to commit this last offense. 4

On the afternoon of Sunday, July 2, 1944, at a bench in Schenley Park, Pittsburgh, John Doe, a stranger, engaged James J. Cosgrove in conversation and later invited him to his hotel room in downtown Pittsburgh. While they were in a toilet room a man (afterwards identified as Robertson) demanded that they come out. He showed them a police badge and treatened Cosgrove with trouble because, as he said, his companion, Doe, was a ‘bad man’, Robertson ostensibly took Doe to jail but soon returned and told Cosgrove ‘they’ wanted his fingerprints and picture. He then escorted Cosgrove to another hotel and obtained from him a full disclosure of his financial affairs, his savings and investments, and his standing in the community. Cosgrove reiterated that he had never been in any trouble, and that he did not want his reputation damaged by being mixed up in a police investigation. Robertson finally told him that the whole thing would be considered a ‘closed book’, and allowed him to go. On July 5, 1944, Robertson came to the Mesta Machine Company plant where Cosgrove was working, had him called out, and told him that the inspector of police was angry because he had not been brought in. They then met Downer, the present defendant, who, posing as the inspector of police, showed Cosgrove the headlines of a Pittsburgh newspaper which referred to the rape and slaying of a young girl in Pittsburgh, and said that Cosgrove was wanted for questioning about that crime. After other fear-producing statements, the defendant suggested that Cosgrove give cash bail of $5,000 in order that his good name be spared, and so that everything could be kept quiet; promising that the bail money would be returned in a few weeks. Robertson and Downer accompanied Cosgrove to two banks and waited while he withdrew money from each, and borrowed $2,000 additional from one of them. Cosgrove then gave some $5,000 to them. About six days later they tried to get Cosgrove to give them more money, alleging that ‘the judge said that the bail was not enough.’ At this point a confidant of Cosgrove sent him to the district attorney and the matter was turned over to the police. In November, 1944, after the examination of some 500 photographs in the rogues' gallery, Cosgrove identified the pictures of Robertson and of Downer.

Through the aid of the Federal Bureau of Investigation, Downer was arrested in Denver, Colorado, and upon searching him the officers found a pair of handcuffs and a badge bearing the inscription ‘police detective.’ He was brought back to Pittsburgh and identified by Cosgrove. Robertson was not apprehended and John Doe was never identified. At the trial the bank officers were called, and testified to the loan and the two withdrawals of money on July 5, 1944.

The defense was a denial and an alibi. The defendant testified to where he had

49 A.2d 519

been living; that he had been residing in Houghton Lake, Michigan, on July 5, 1944, and for several days before and after; and that he had not been in Pittsburgh within ten years, i.e. since 1935.

Upon cross-examination the district attorney asked him: ‘Mr. Downer, why didn't you tell Mr. Sullivan here [lieutenant of detectives in Pittsburgh] when you were turned over to him this story about being in Houghton Lake [Michigan, on July 5, 1944]?’ Defendant's answer, over objection, was: ‘He never asked me where I was or anything else.’ The fifth assignment of error alleges that this was improper. Except for the provisions of the Act of 1911, P.L. 20, 19 P.S. 711, 5 where the defendant testifies in his own behalf he ceases to have the character of an accused and becomes a witness, subject to the same sort of cross-examination as any other witness, and great latitude on cross-examination is permitted ( Commonwealth v. Delfino, 259 Pa. 272, 102 A. 949); he stands in no better position than any other witness ( Commonwealth v. Quaranta, 295 Pa. 264, 145 A. 89); and there is no protection as to self-incrimination, it having been waived (Commonwealth v. House, 6 Pa.Super. 92; Commonwealth v. Swartz, 40 Pa.Super. 370). He may not limit the cross-examination only to the events concerning which he testified. Underhill's Criminal Evidence, 3d Ed., § 114. Appellant argues that ‘the defendant was under no duty to speak.’ But the matter is not a question of duty. Frequently a witness testifying to an alibi is asked to name the person to whom he first related the events testified to. This is always competent. It is common experience that in all sorts of trials witnesses are asked to name...

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2 practice notes
  • United States v. Denno, No. 307
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 31, 1966
    ...Commonwealth, 321 S.W.2d 397 (Ky. 355 F.2d 736 1959), (claim that police pointed out suspect before line-up); Commonwealth v. Downer, 159 Pa.Super. 626, 49 A.2d 516 (1946), (defendant alone shown to witness), although there are some decisions to the contrary, People v. Conley, 275 App.Div. ......
  • Klein v. Kaufmann, CIVIL ACTION NO. 15-0065
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 20, 2019
    ...(emphasis added) (quotations omitted). As such, to be admissible, the flight need not occur immediately after the crime. Com. v. Downer, 49 A.2d 516, 520 (Pa. Super. Ct. 1946) (citing Commonwealth v. Liebowitz, 17 A.2d 719, 723 (Pa. Super. 1941)). The Pennsylvania Superior Court has further......
2 cases
  • United States v. Denno, No. 307
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 31, 1966
    ...Commonwealth, 321 S.W.2d 397 (Ky. 355 F.2d 736 1959), (claim that police pointed out suspect before line-up); Commonwealth v. Downer, 159 Pa.Super. 626, 49 A.2d 516 (1946), (defendant alone shown to witness), although there are some decisions to the contrary, People v. Conley, 275 App.Div. ......
  • Klein v. Kaufmann, CIVIL ACTION NO. 15-0065
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 20, 2019
    ...(emphasis added) (quotations omitted). As such, to be admissible, the flight need not occur immediately after the crime. Com. v. Downer, 49 A.2d 516, 520 (Pa. Super. Ct. 1946) (citing Commonwealth v. Liebowitz, 17 A.2d 719, 723 (Pa. Super. 1941)). The Pennsylvania Superior Court has further......

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