Commonwealth v. Peay

• Decision Date: 19 December 1951
• Citation: 369 Pa. 72,85 A.2d 425
• Parties: COMMONWEALTH v. PEAY et al. (two cases). Appeal of TRUITT (two cases). Appeal of ALLEN (two cases). Appeal of PEAY (two cases). COMMONWEALTH v. SMITH et al. Appeal of SMITH.
• Court: Pennsylvania Supreme Court

85 A.2d 425

369 Pa. 72

COMMONWEALTH v. PEAY et al. (two cases).

Appeal of TRUITT (two cases). Appeal of ALLEN (two cases). Appeal of PEAY (two cases). COMMONWEALTH v. SMITH et al.

Appeal of SMITH.

Supreme Court of Pennsylvania.

December 19, 1951

Lester Peay, Charles B. Tarpley, John F. Allen, and Harry W. Truitt Jr., were convicted in the Court of Quarter Sessions of the Peace of Westmoreland County, at No. 194 August Term, 1950 John M. O'Connell, J., of obstructing an officer in attempting to make an arrest and of assaulting and beating an officer, and the same defendants were convicted in the same court at No. 215, May Term, 1950, of assault and battery and of aggravated assault, and Robert T. Smith and Charles Tarpley were convicted in the same court at No. 216, May Term, 1950, for affray, and they appealed. The Superior Court of Pennsylvania, at No. 75, 78, and 81, April Term, 1951 Chester H. Rhodes, J., 82 A.2d 699, 169 Pa.Super. 326 affirmed the judgments and sentences of Court of Quarter Sessions of the Peace of Westmoreland County at No. 194, August Term, 1950, and at Nos. 76, 79 and 80, April Term, 1951, and the same court affirmed the judgments and sentences of Court of Quarter Sessions of the Peace of Westmoreland County at No. 215, May Term, 1950, and at No. 77, April Term, 1951, the same court affirmed the judgments and sentences of the Court of Quarter Sessions of the Peace of Westmoreland County at No. 216, May Term, 1950, and defendants appealed. The Supreme Court, Nos. 25, 26, 27, 28, 29, 30, and 31, Stearne, J., held, inter alia, that testimony of a defendant relative to membership of such defendant in a political party, and whether such political party was dominated by Communists, was not relevant and that whether defendants, or any of them, were members of Communist Party or adhered to its doctrine was irrelevant.

Judgments reversed, sentences vacated, and new trial ordered.

Bell and Ladner, JJ., dissented.

Earle R. Jackson, Harry I. Glick, Pittsburgh, Joseph Bonidy, New Kensington, for appellants.

Joseph M. Loughran, Asst. Dist. Atty., Greensburg, L. Alexander Sculco, Dist. Atty., New Kensington, for appellee.

Before DREW, C. J. and STERN, STEARNE, BELL, LADNER and CHIDSEY, JJ.

ALLEN M. STEARNE, Justice.

The allocatur is from the Superior Court which affirmed convictions and sentences of the Court of Quarter Sessions of Westmoreland County.

Harry W. Truitt, Jr., John F. Allen, Lester Peay, and Charles B Tarpley were indicted charged with (1) obstructing an officer in attempting to make an arrest, and (2) assaulting and beating an officer. The jury found all of the defendants guilty and each, except Tarpley (whose sentence was deferred because of illness) was sentenced to one year in the Allegheny County Workhouse. The same four defendants were also indicted charged with (1) assault and battery, and (2) aggravated assault and battery upon the person of John Bordonaro, who was Captain of Police in the City of New Kensington, Westmoreland County. They were all found guilty as indicted, by the jury, and each, except Tarpley, was sentenced to the Allegheny County Workhouse house for three years. Robert T. Smith and Charles Tarpley were also indicted for affray, and were found guilty. Smith was sentenced on this conviction for a term of not less than one and one-half years, and not more than three years. The appeals are by Truitt, Allen, Peay, and Smith.

Appellants do not question the sufficiency of the evidence to sustain the verdicts. Their appeals relate to the refusal of the court below to grant a new trial. The questions presented are based upon (1) the admission of allegedly prejudicial evidence concerning communistic connections and activities of Truitt and Smith; (2) the failure of the trial judge to charge on Truitt's constitutional right of immunity from search and seizure by an officer attempting to make an arrest without a warrant in Truitt's home; (3) the refusal of the motion of counsel for appellants to withdraw a juror when it was shown during the trial that a woman juror had been driven home the preceding day by the alderman before whom the defendants' preliminary hearing was held.

The Eagle Clothing Company store in New Kensington was being picketed because of a strike against the Ellay Company of New York City, a wholesale clothing company. Employes of Ellay were represented by Local 65 of the Wholesale and Warehouse Workers Union. No labor dispute existed with Eagle's employes. Defendant Smith, who was not a member of Local 65, was sent by that Union from New York to New Kensington as strike leader. In Pittsburgh he hired defendants Peay and Tarpley and also other male and female pickets. Defendant Truitt is a dental technician, whose office and apartment are near the Eagle store. Officials of Local 65 had directed Smith to contact Truitt. All the pickets, including defendants, used Truitt's office and apartment for their personal convenience.

On Saturday night March 18, 1950, at about 8:30, in front of the picketed store, in the center of town, at the height of the town's shopping hours, a customer of the Eagle store, John Fee, was, according to the testimony produced by the Commonwealth, attacked and beaten by Smith and other pickets while he was leaving the store after having made a purchase. All of defendants were involved. A friend of Fee came to his rescue. A general fight or fray ensued, in which many people engaged. A large crowd gathered. Police rushed to the scene. Police Captain Bordonaro observed Smith running away. Smith was followed by the Captain and was seen entering defendant Truitt's apartment through the rear entrance.

What thereafter immediately happened is summarized by President Judge Rhodes in his opinion: ‘ Bordonaro returned to the scene to procure the assistance of another officer. Thereafter he went up the front stairs to Truitt's office on the second floor of the building while the other officer watched the rear entrance. Bordonaro met Truitt, Allen, and Peay coming down the steps. He demanded that Truitt surrender Smith but was told by Truitt that there was no one there. Bordonaro went to Truitt's apartment on the third floor in his search for Smith. As he came down Bordonaro met Truitt, Allen and Peay on the second floor landing. Bordonaro again demanded that Truitt surrender Smith. According to Bordonaro, Truitt replied: ‘ Get out of here. You ain't got no business in here. You ain't getting any fellow.’ Truitt, Allen, Peay, and Tarpley attacked the officer. Someone hit him in the back as he attempted to use the telephone. Truitt took hold of Bordonaro and forcibly removed the telephone from his hands. In doing so, Bordonaro's arm hit the door and his wrist was severely injured. Truitt thereupon said to Bordonaro: ‘ Don't make me laugh; you're not taking that fellow out of here anyhow.’ Peay grabbed Bordonaro and ripped his coat. Bordonaro then informed Truitt, Allen, and Peay that they were under arrest; he succeeded in getting Allen and Peay downstairs where they were turned over to other police. Truitt returned to his apartment. He was later arrested by other officers.'[ 169 Pa.Super. 326, 82 A.2d 701.]

Defendants, in some particulars, contradicted various statements of some of the Commonwealth's witnesses relating to the assault and battery upon the Police Captain and to the obstruction in the arrests. They sought to minimize the Police Captain's painful injuries, torn clothing, and the mauling to which he was subjected. However, in essential features, the charges in the indictments were amply and sufficiently established.

The chief complaint of defendants is that the court below erred in refusing to grant a new trial because of the injection into the case of incompetent and irrelevant testimony concerning communist connections and activities of defendants Truitt and Smith. It is charged that this is a collateral issue, and had nothing to do with the crimes charged for which defendants were indicted, and should not have been permitted in the record; that the effect of such innuendos, inferences and unsupported irrelevant accusations created prejudice and antogonism against defendants in the minds of the jury.

The trial judge in his charge said: ‘ At this stage I want to say to you that these men are not being tried for being communists. It is your duty and mine and that of the Commonwealth, regardless of what we may think of their beliefs, to give them a fair and a just trial, under the laws of the United States and the Commonwealth of Pennsylvania, and in doing that, you are to take the testimony in its entirety and decide fairly and reasonably whether these men are guilty of committing an affray and an assault and battery or whether or not they are guilty of resisting an officer, in obstructing him in the service of process.’

The Commonwealth contends that even if such testimony was unsupported and irrelevant, nevertheless, defendants' able and experienced counsel without objection permitted such testimony to be given. The Superior Court decided, in such circumstances, that the testimony was properly admitted. President Judge Rhodes said: ‘ Appellants elected to try their case with the communist issue injected into it, and we cannot say they did not have a purpose in doing so. Evidence introduced by the Commonwealth, without objection established that Local 65, which conducted the picketing at the New Kensington store, was communist dominated and had been thrown out of the C. I. O. for that reason. The cross-examination of Truitt and Smith as to the character of Local 65 and their connection with it was proper. Likewise, without objection, Truitt and Smith were cross-examined as to whether they were Communists or had...