United States v. Avellino, 10997.
| Decision Date | 18 November 1954 |
| Docket Number | No. 10997.,10997. |
| Parties | UNITED STATES of America v. Anthony Richard AVELLINO, Anthony Asti, Frank Anthony Asti, Kenneth Dean Croyle, Thomas David McMahon, Jr. and John Doe (Vito Joseph Rossello). Appeal of Vito Joseph ROSSELLO. |
| Court | U.S. Court of Appeals — Third Circuit |
John A. Robb, Pittsburgh, Pa., for appellant.
W. Wendell Stanton, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
Before MARIS, McLAUGHLIN and STALEY, Circuit Judges.
This is a companion case to that of United States v. Avellino, 3 Cir., 216 F. 2d 875. The opinion of the court in that case states the facts with respect to the bank robbery which was the basis for the prosecution of both defendants. Vito Joseph Rossello, originally indicted as John Doe, was not apprehended until after the trial at which Avellino, Anthony Asti, Frank Anthony Asti and Kenneth Dean Croyle were convicted. Following his arrest he was tried alone and convicted on counts one, two, three and five of the indictment. He was sentenced to ten years imprisonment on counts one, two and three and five years on count five, all to run concurrently. He appealed but his appeal was dismissed because of the failure of his then counsel to prosecute it. Upon his application this court appointed counsel for him and reinstated his appeal.
Substantially the same questions are raised on this appeal as were presented in Avellino's appeal, namely, that the evidence establishing the existence of the conspiracy to rob the bank was insufficient and that the evidence identifying Rossello as a conspirator and a participant in the robbery was likewise insufficient to support the verdict of guilty.
We need add nothing to what is said in our opinion in the Avellino case with respect to the evidence establishing the existence of a conspiracy to rob the bank in question. It was clearly inferable from the evidence that the two men who robbed the bank on the early morning of February 15, 1952 acted in accordance with a prearranged plan to which they, at least, had agreed. Indeed the jury could hardly have found to the contrary.
It is a much more serious question whether there was sufficient evidence to connect Rossello with the substantive offenses and the conspiracy. At Rossello's trial there were three witnesses who identified him as the shorter of the two masked bank robbers. These were the assistant cashier of the bank, one of the bank tellers and a fourteen-year old boy. The assistant cashier identified Rossello mainly by his voice, he being the robber who did most of the talking in the bank. The assistant cashier's identification was deliberate and considered. He did not identify Rossello at the opening of the trial but after having heard him testify in court he stated that he was able to identify Rossello on the basis of his voice together with his eyes, height and physical characteristics. The teller who identified Rossello at the trial laid stress upon his eyes which she described as "very black, sharp eyes." There was some suggestion at the trial that Rossello's eyes were actually hazel rather than black. The jury, however, had an opportunity to observe them in considering this witness' credibility.
The fourteen-year old boy who identified Rossello was on the sidewalk outside the bank when the robbers ran out of the side door of the bank. He testified that the cloth covering the lower part of Rossello's face slipped down and he thus had an opportunity to observe his face. He definitely identified Rossello as one of the fleeing robbers. In the course of his testimony this witness described the clothing of the robbers in a way which did not agree with the description given by the other witnesses. Counsel lays stress on this fact. This, however,...
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