Commonwealth v. Quaranta

• Citation: 145 A. 89,295 Pa. 264
• Parties: COMMONWEALTH v. QUARANTA.
• Decision Date: 26 November 1928
• Court: Pennsylvania Supreme Court

145 A. 89
295 Pa. 264

COMMONWEALTH
v.
QUARANTA.

Supreme Court of Pennsylvania.

Nov. 26, 1928.

145 A. 90

[Copyrighted material omitted.]

145 A. 91

Appeal from Court of Oyer and Terminer, Philadelphia County; James Gay Gordon, Jr., Judge.

Luigi Quaranta was convicted of murder, and he appeals. Affirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

Otto Kraus, Jr., Morton Witkin, and L. Wallace Egan, all of Philadelphia, for appellant.

Charles F. Kelley, Asst. Dist. Atty., and John Monaghan, Dist. Atty., both of Philadelphia, for the Commonwealth.

KEPHART, J. On the afternoon of Decoration Day, 1927, four men were standing on the sidewalk of Christian street, just west of Eighth street, in Philadelphia, when an automobile dashed around the corner. As it passed the group of men, a fusillade of shots from sawed-off shotguns came from the car toward this group, and Vincent Cocozza fell, mortally wounded. The same car and its occupants had a few seconds before killed Joseph Zanghi as he was passing on Eighth street, a short distance around the corner from the spot where Cocozza fell. Both homicides were undoubtedly the result of what is known as gang warfare, and came about from a feud or jealousy in the bootlegging or illegal drug business. The movement of the car and identification of defendant were shown by direct and positive evidence. The intent to kill was apparent, and the record shows the commonwealth made out every element of first degree murder. Tins the jury found, fixing life imprisonment as the penalty.

After the commonwealth's case had closed, defendant's counsel, at side bar, stated to the court that he desired, in the opening speech to the jury and in the presentation of evidence thereafter, to inform the jury and to prove that Festa and Scopoletti, referred to by the commonwealth's witnesses as being in the murder car at the time of the homicide, had been tried on the charge of murder and acquitted, they having been jointly indicted with the defendant then on trial. The court below ruled that the fact of conviction or acquittal of other persons was not evidence in the case then on trial, and instructed counsel to make no reference to that fact in his opening speech. The court then excluded all offers of testimony that might be made bearing thereon.

It will be noticed that the above circumstance is a rather unusual method of procedure, as it combined an offer of evidence before the opening address and an offer as to what was to be said in the opening address to the jury outlining the defense. Courts may properly restrict counsel, in opening, by refusing to permit questionable features of evidence to be referred to, holding counsel to a narrative of the defense, reserving further consideration of the matter until it is offered in evidence. The court may then determine its admissibility, and, if it may be received, no harm is done to the accused in refusing to permit reference to be made to it in the opening, as the jury later will be fully aware of the facts. If the evidence is inadmissible, then, by the action taken, the commonwealth is not prejudiced. The court was not in error in restricting counsel's remarks.

The second branch of the order is more difficult. The court below did not treat the offer of evidence as out of place, nor as containing more than one subject; it would not be objectionable on that ground. See Com. v. Colandro, 231 Pa. 343, 348, 80 A. 571. But the trial judge attempted to rule on testimony that might be offered after the case opened. A trial judge should not anticipate an offer of evidence, and, by thus acting, attempt to close the door to such offer being placed regularly in the record. An appellate court is entitled to know the accused's theory of the case, and the evidence or offers bearing on it. Counsel may, notwithstanding the ruling place his offers on record and demand a specific ruling, so that exception may be had if the evidence is rejected.

Counsel did not state any definite purpose for which the proof was offered. It was to show generally that two men jointly indicted with defendant, and supposed to have been riding with him when the murder occurred, were tried for the crime and acquitted. It is quite evident their acquittal or conviction would be proof neither for nor against the defendant then on trial. Commonwealth's witnesses might have been mistaken as to the identity of the persons who were in the car. To have admitted the evidence generally would have permitted defendant's counsel a wide latitude in his closing remarks. He could urge with much assurance that, another jury having cleared these two men of any complicity in the murder, this jury should accept that verdict as conclusive of defendant's innocence. Defendant urges that those verdicts are conclusive, in the present case, of the facts relating to these two men, with a corresponding benefit to the accused. The judgment in a criminal case is not res judicata of the facts on which that case was based, where such facts or a part of them are in dispute in another action between different parties. The verdicts are not admissible as substantive proof in the second case; as to it, the evidence would be res inter alios acta. "Evidence of the acquittal of one jointly indicted with defendant is not admissible on behalf

145 A. 92

of defendant as tending to establish his innocence. And this is true even though the evidence tends to show that defendant on trial was an accessory before the fact, where the statute has abolished the distinction between principal and accessory." 16 Corpus Juris, § 1342, p. 670. See, also, Com. y. Coontz, 288 Pa. 74, 135 A. 538.

But it is argued that the evidence has further evidential value beyond establishing the facts in dispute in the cases in which the witnesses were acquitted, in that it was proper testimony to show that the witnesses had no bias or interest.

The commonwealth's evidence tended to show that the witnesses were accomplices. Standing alone, this fact clearly revealed an intense interest by them in the result of the trial of defendant. Without explanation, their complicity could be kept prominently before the jury throughout the trial, impairing, if not destroying, the value of their testimony. "It bears against a witness' credibility that he is an accomplice in the crime charged. * * * When the co-indictee testifies for the accused, his situation here may also be considered as tempting him to exonerate the other accused and thus help toward his own freedom." 2 Wigmore on Evidence, § 967. The fact of acquittal could be used to show want of personal interest. It was a very material circumstance in defendant's case. "If the credibility of a witness is attacked by evidence that he has been charged with the commission of a crime, he may in rebuttal prove that he has been acquitted of that charge." 28 R. C. L. 649, § 233; Jackson v. State, 33 Tex. Cr. R. 281, 26 S. W. 194, 622, 47 Am. St. Rep. 30. The use of the evidence should be carefully limited to this purpose by the trial judge, and its connection with the case explained to the jury.

Furthermore, the fact of acquittal of a witness, as shown by verdict and judgment, is...