Commonwealth v. Towber

• Decision Date: 03 July 1959
• Citation: 152 A.2d 917,190 Pa.Super. 93
• Parties: COMMONWEALTH of Pennsylvania v. Wasyl TOWBER, Appellant.
• Court: Pennsylvania Superior Court

152 A.2d 917

190 Pa.Super. 93

COMMONWEALTH of Pennsylvania v. Wasyl TOWBER, Appellant.

Superior Court of Pennsylvania.

July 3, 1959.

S. J. McEwen, Jr., S. J. McEwen, Upper Darby for appellant.

Ernest L. Green, Jr., Asst. Dist. Atty., J. Harold Hughes, First Asst. Dist. Atty., Raymond R. Start, Dist. Atty., Media, for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

HIRT, Judge.

The defendant was indicted on charges of burglary, robbery and other related offenses arising from the same set of circumstances. Leonard J. Fitzgerald, a codefendant pleaded guilty to all of the charges. Towber, whose defense was an alibi, was found guilty as indicted and was sentenced.

Shortly after two o'clock in the early morning of October 26, 1957, two masked men, one of them with a sawed-off shotgun, entered the Birmingham Grille, a diner at Painter's Crossroads in Delaware County. The gun was discharged into the roof of the structure and eight or ten customers together with the employes who were on duty were herded into a corner of the diner. The men in the group were made to surrender their wallets, and the women, their handbags. The cash register was rifled. The two holdup men made their escape in a 1957 Chevrolet which had been stolen some hours before from a parking lot near a steel mill in Coatesville. A witness, who had driven up to the diner while the holdup was in progress realized what was going on and was instrumental in notifying the police. Police officers observed the get-away car as it was driven through West Chester and followed it. They were eluded however and never caught up with the car which was later abandoned at the side of a country road, several miles from Coatesville. It was suspected that Fitzgerald had a part in the crimes and he was arrested in Coatesville about 4:30 of the same morning. At the State Police barracks immediately following his arrest, Fitzgerald admitted his part in the crime as the accomplice of appellant Wasyl Towber. He said that it was Towber who suggested that they 'pull a job', when he met him by chance early in the evening before, in Coatesville where they both lived; that Towber then had the shotgun under his coat and he also had a rubber mask; that after stealing the Chevrolet car they proceeded to the diner, with Towber driving and arrived there about 2 a. m.; that Towber purposely discharged the gun and it was he who robbed the people who were in the diner, while Fitzgerald, at Towber's direction rifled the cash register; that they divided the stolen money between them in a vacant building known as Old Mansion and there abandoned the stolen car; that they separated as they were walking along toward Coatesville.

Because both of the men were masked, the victims who appeared as witnesses, were unable to identify the robbers but their testimony as to general physical characteristics fitted both defendants. Towber was arrested later in the same morning and was taken to the police barracks. There, according to the testimony, Fitzgerald's confession was read in the presence of both Fitzgerald and Towber; all three of the State Police officers who also were present at the reading of the confession testified that Towber did not deny the implication of guilt but stood mute and refused to say anything. Towber at the trial denied that he refused comment when Fitzgerald's confession, charging him as an accomplice, was read in his presence. He testified: 'I asked to plead the 5th amendment to the Constitution because I didn't know what everything was about, I didn't know what to say.' The officers' testimony was that the claim of immunity under 'the 5th amendment' did not come until at least two hours later. The trial court submitted the testimony of Towber's standing mute and refusing to answer as evidence of his guilt, under Com v. Vallone, 347 Pa. 419, 32 A.2d 889. However since Towber testified that he claimed immunity under the 5th amendment at the time when Fitzgerald's statement was read to him, the jury should have been specifically instructed to consider both the evidence of the Commonwealth and that of the defendant, as to Townber's conduct at that time; for only if the jury accepted the testimony of the Commonwealth witnesses, namely the three State policemen, that Towber then stood mute could his silence be deemed an admission of his guilt. Without submitting to the jury the question as to when Towber claimed immunity the trial judge charged the jury: 'Now the next thing, and this is only to test the credibility of the defendant Towber, he told you under oath when he was being cross-examined that he did not answer because he claimed the 5th Amendment. Now it is all right for defense counsel to call your attention to the fact that that is in the newspapers in great big black headlines, 5th Amendment, 5th Amendment, refuse to answer on the ground it may incriminate me, and I don't want to testify against myself, and so forth. And that was a legitimate argument. But, on the other hand, you have a right to say to yourselves that if he did do this why did he do it, did he have a reason for not answering, and did he have a reason for claiming, as he said under oath, under cross-examination from the witness stand, he...