Commonwealth v. Jones
| Decision Date | 25 March 1974 |
| Citation | 317 A.2d 233,455 Pa. 488 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Otis JONES, Appellee. |
| Court | Pennsylvania Supreme Court |
Stephen J. McEwen, Jr., Dist. Atty., Vram Nedurian Jr., Asst. Dist. Atty., Media, for appellant.
G Guy Smith, Media, for appellee.
Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
This is an appeal by the prosecution from an order granting the appellee, Otis Jones, a new trial following his convictions involving murder in the first degree, robbery and conspiracy. A court en banc granted the new trial because the trial court failed to give points for charge requested by the appellee, Otis Jones. 'The law is well settled that the grant or denial of a motion for a new trial will not be reversed by this Court, unless (the order of the court en banc) was a clear abuse of discretion or an error of law (citations omitted).' Commonwealth v. English, 446 Pa. 161, 163, 279 A.2d 4, 5 (1971). See also Commonwealth v. Hartman, 383 Pa. 461, 119 A.2d 211 (1956).
One of the reasons for the grant of a new trial was the refusal of the trial court to charge the jury that an adverse inference might be drawn against the prosecution because of its failure to call as a witness, Dr. Bernard Finneson. The charge requested by the defense was:
The court en banc held that the above charge should have been given because (1) Dr. Finneson was listed as a prosecution witness on the bill of indictment (2) his testimony went to a crucial matter and (3) the prosecution did not give proper notice to defense counsel that Dr. Finneson would not be called as a witness by the prosecution.
In Commonwealth v. Schmidt, 437 Pa. 563, 567, 263 A.2d 382, 384 (1970), we said the following concerning the prosecuting attorney's duty to call witnesses listed on the bill of indictment:
'In Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872, the Court pertinently said (page 589, 150 A.2d page 874): 'There is no duty on the Commonwealth to call witnesses whose names appear on a bill of indictment or even eye witnesses, if it believes after examination or investigation that their testimony is unreliable, or unworthy of belief, or surplusage or irrelevant. The law in such a case merely requires a District Attorney to notify the Court and defense counsel that he does not intend to call certain persons whose names appear on the bill of indictment as Commonwealth witnesses. Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540; Commonwealth v. Deitrick, 221 Pa. 7, 14, 15, 70 A. 275. See also Commonwealth v Danz, 211 Pa. 507, 522, 60 A. 1070; Commonwealth v. Giacobbe, 341 Pa. 187, 195, 19 A.2d 71. . . .''
There is no dispute that Dr. Bernard Finneson was listed as a prosecution witness on the bill of indictment, and the prosecution does not contend that his testimony would have been unreliable, or non-credible, or irrelevant. Its only claim is that his testimony was cumulative. We disagree. Dr. Finneson's testimony would not have been cumulative to the testimony of any other prosecution witness, and the court en banc properly concluded that the refused charge 'went to a crucial matter' and 'was of particular significance since the issues . . . were extremely close.'
The victim of the charged offenses was Jacob Auerbach. During the trial, although the appellee denied any participation in the robbery, one of the disputed issues concerned the cause of the victim's death. The prosecution contended that the victim's death in the hospital on December 12, 1969, was caused by head injuries received when he was hit or knocked down, two days earlier, outside his place of business when he was robbed by three men. The defense contended that the victim, who had a medical history of hemophilia, died of causes unrelated to the robbery.
The prosecution called Dr. Vincent P. DeAugustine, the coroner's physician, who performed an autopsy of the victim's body after death, to prove the cause of death. Dr. DeAugustine testified that he found three sutured incisions on the victim's head, and two burr holes in the skull. He testified that the cause of death was 'a cerebral contusion, cerebral hemorrhage, and an intracerebral hematoma' caused by 'some external force or blow to the head.' Dr. DeAugustine admitted during cross-examination that he did not perform any procedures with regard to any part of the body other than his limited examination of the skull. He said he did not check the body to see whether there could have been an intervening cause of death that may have take effect prior to any effect from the injuries which he discovered in the skull area. Dr. DeAugustine also said that there was no evidence that any brain tissue had been removed prior to his autopsy. The court en banc, in reviewing Dr. DeAugustine's testimony, pointed out that the witness gave no explanation for the three large incisions found on the victim's head and did not consider the possibility of a cause of death outside the skull area. Dr. DeAugustine had no personal knowledge about the incisions or the burr holes which were made in the hospital.
During the two days that the victim was in the hospital between the robbery and his death, Dr. Bernard Finneson had performed surgery on the victim. Dr. Finneson, however, was not called as a witness by the prosecution. His testimony would not have been cumulative to that of any other witness presented by the prosecution. The prosecuting attorney admitted that fact when the unavailability of Dr. Finneson was being discussed with the trial court. The prosecuting attorney said that Dr. Finneson was the only witness competent to testify about certain disputed matters. The prosecuting attorney said to the court:
We must reject the argument that Dr. Finneson's testimony would have been cumulative and agree with the court en banc that his testimony would have been significant.
The facts concerning the prosecution's failure...
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