Commonwealth v. Gurreri

• Decision Date: 21 March 1962
• Citation: 178 A.2d 808,197 Pa.Super. 329
• Parties: COMMONWEALTH of Pennsylvania v. Russell Frank GURRERI, Appellant.
• Court: Pennsylvania Superior Court

178 A.2d 808

197 Pa.Super. 329

COMMONWEALTH of Pennsylvania v. Russell Frank GURRERI, Appellant.

Superior Court of Pennsylvania.

March 21, 1962.

Nevin Stetler, Leo E. Gribbin, Jr., York, for appellant.

Donn I. Cohen, Asst. Dist. Atty., Frank B. Boyle, Dist. Atty York, for appellee.

Before ERVIN, Acting P. J., and WRIGHT WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

ERVIN, Judge.

The defendant, Russell Frank Gurreri, appeals from the sentence which was imposed upon him by the court below after his conviction by a jury on the charge of bookmaking and after the court below refused his motions for a new trial and in arrest of judgment.

On September 20, 1960 the Pennsylvania State Police raided a house in York County, Pennsylvania, and found therein Roger Markle and Russell Frank Gurreri. Markle was seated at a card table with a telephone, surrounded by bookmaking paraphernalia. Gurreri was nearby on a sofa. Shortly after the arrival of the police phone calls were received by the State Police in which the callers sought to place bets or obtain racing information from Gurreri, Markle admitted his guilt and entered a plea of guilty to an indictment charging him with bookmaking. Gurreri plead not guilty and was tried by a jury. At the trial Markle was called as a witness by the Commonwealth and asked in direct examination whether he was conducting a bookmaking business at the raided premises. He admitted that he was. He was then turned over to the defendant for cross-examination and he then testified that he was not associated with Gurreri in the bookmaking business. The Commonwealth then asked permission to examine Markle in regard to certain of the records which had been found in his possession and which indicated that Gurreri was guilty of bookmaking at the time of the raid.

The principal contention of the appellant Gurreri is that the Commonwealth should not have been permitted to impeach the testimony of Markle without first pleading surprise. In Com. v Deitrick, 221 Pa. 7, 15, 16, 70 A. 275, 278, our Supreme Court said: 'However much it was insisted upon formerly that a party could not be allowed to impeach by contradiction witnesses called by himself, the rule which prevented it has not only been much relaxed, but, as Mr. Wigmore in his treatise on Evidence shows, has been in most jurisdictions wholly abrogated. In England, where it had its origin, some features of it, preserved by statute, yet remain, but the very marked tendency in this country is to escape from it entirely. Our own state furnishes no exception. In Gantt v. Cox & Sons Co., 199 Pa. 208, 48 A. 992, speaking by the present chief justice, we said: 'The rule that a party calling a witness is not permitted to ask leading questions and is bound by his testimony is liberally construed in modern practice, with a large measure of discretion in the court to permit parties to elicit any material truth without regard to the technical consideration of who called the witness. It is a discretion not susceptible of exactly defined limits before hand, but to be exercised in the interests of justice and a fair trial under circumstances as they arise.'' See also Com. v. Joseph, 182 Pa.Super.Ct. 617, 623, 624, 128 A.2d 121; Morris v Guffey &amp Queen, 188 Pa. 534, 41 A. 731. This is particularly true where the witness is an associate of the defendant and naturally reluctant to testify against him. Com. v. Bruno, 316 Pa. 394, 403, 175 A. 518. It is entirely probable that Markle was 'taking the rap' for his associate Gurreri. See Com. v. Cerzullo, 175 Pa.Super.Ct. 330, 104 A.2d 179.

Professor Wigmore, in his monumental treatise on evidence, 3d edition, § 909, at page 420, also says: 'The general rule itself (against impeaching one's own witness) is so fraught with irrationality that to apply it with rational deduction is almost impossible. A rule which rests upon a fiction is apt to lead to mere quibbles when a detailed and consistent development is attempted. The quiddities and meaningless distinctions which occur in the present application serve more than anything else to exhibit the arbitrary absurdity of the rule at large.' Again, at page 422, he says: 'Such seem to be the general considerations that may be invoked in solving the specific situations now to be dealt with. No doubt it may all seem to be a matter of fine distinctions, of petty quibblings, and of artificial logomachy. But if we are building a rule upon fiction there is nothing else to be done but to carry out the assumed requirements of the fiction. It is all a ridiculous structure in the air of legal fancy; but so long as the rule exists, it is to be applied with at least a pretence of rationality. Concede the falsity of the foundation, and then the entire structure may be abandoned. Until then, it remains to apply the rule to concrete situations as best we can.'

In Fetterolf v. Yellow Cab Co., 139 Pa.Super.Ct. 463, 471, 11 A.2d 516, 520, we said: 'In support of their contention that a party calling a witness is bound by his testimony in so far as it may be against him, counsel for the city cite Henry on Pennsylvania Trial Evidence, 2d Ed., p. 526, but omit this qualification by the author: 'This rule has not been so strictly enforced in recent decisions, however, and when necessary to prevent injustice the tendency is to permit parties to elicit the truth without strict regard to technicalities, and contradiction may be permitted though the rule as to hostile and adverse witnesses is not invoked and surprise is not pleaded. The mere fact of calling a witness does not mean that the party thereby admits as true everything the witness may say, and he is not estopped from proving the facts to be otherwise by other evidence.''

The real question is whether to permit impeachment constitutes an abuse of discretion by the trial court. Com. v Reeves, 267 Pa. 361, 110 A. 158. The Commonwealth sought to impeach the witness Markle by showing that certain words in his own handwriting in the bookmaking paraphernalia found on the table meant that...