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COMMONWEALTH v. ROTHMAN (01/12/51)

January 12, 1951

COMMONWEALTH
v.
ROTHMAN



COUNSEL

Michael von Moschzisker, Thomas D. McBride, Philadelphia, for appellant.

Robert L. Kunzig, Deputy Atty. Gen., Charles J. Margiotti, Atty. Gen., for appellee.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Arnold

[ 168 Pa. Super. Page 164]

ARNOLD, Judge.

The defendant was an officer of the Commonwealth, to wit, a member of the State Board of Pharmacy. A jury found him guilty of receiving certain bribes given to influence him in examinations for registration of pharmacists; of corruptly facilitating the passing of examinations by three named individuals; and of conspiracy to bring about a false examination by extortion and bribery. David C. Gross was tried at the same time for kindred offenses and was convicted, but brings no appeal.

The jury's verdict established that four particular men took and passed the State Board of Pharmacy examination in the years 1945 through 1948. Three of them testified that under varying circumstances they paid $1,500 to pass. DeMarco paid Gross directly. Segal

[ 168 Pa. Super. Page 165]

    and Reider did not see Gross but paid Sabatino, who paid Gross in those two cases. One Sluko (not called as a witness) paid Gross directly, and Gross paid Rothman, the present appellant, $1,000 for Sluko. DeMarco, Reider and Segal testified that they got help from Rothman during the examination.

We have reviewed the testimony but briefly. We are convinced that this is not a case where this Court should grant a new trial on the ground that the verdicts were against the weight of the evidence. There was, however, plain and patent error committed against the defendant at the trial, the prejudicial effect of which cannot be doubted.

Reider testified for the Commonwealth that while taking the pharmacy examinations, Rothman, then the acting president of the board, came to his desk and slipped into his papers the answers to some of the questions. On cross-examination counsel for the defendant proposed to ask Reider 'whether or not during the [noon] recess * * * in the corridor [he had] made the statement that the members of the Board are lying, and that the truth of the matter is that while he [the witness] was talking to the defendant Rothman during the examination, it was really Mr. Costenbader [member of the Pharmacy Board] who slipped the questions onto his, Reider's, desk.' The court sustained Commonwealth's objection thereto.

Since Reider had testified that the defendant had given him the answers during the course of the examination, it needs no argument to demonstrate that with this positive, direct testimony incriminating Rothman, the defendant had a right to contradict the witness by showing that he had stated that that element of the crime had been committed by someone else. This cross-examination went directly to the credibility of the ...


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