Earl R. Jackson, Pittsburgh, Joseph Bonidy, New Kensington, for appellant.
L. Alexander Sculco, District Atty., New Kensington, Joseph M. Loughran, Asst. Dist., Atty., Greensburg, for appellee.
Before Rhodes P. J., and Hirt, Reno, Dithrich, Ross, and Arnold, JJ.
[ 169 Pa. Super. Page 328]
Harry W. Truitt, Jr., John F. Allen, Lester Peay, and Charles B. Tarpley were indicted at No. 194, August Term, 1950, in the Court of Quarter Sessions of Westmoreland County, having been charged with (1) obstructing an officer in attempting to make an arrest, and (2) assaulting and beating an officer. On this bill of indictment 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. At No. 215, May term, 1950, in the Court of Quarter Sessions of Westmoreland County, the same four defendants were 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 found guilty by the jury as indicted, and each, except Tarpley, was sentenced to the Allegheny County Workhouse for three years. At No. 216, May Term, 1950, in the Court of Quarter Sessions of Westmoreland County, Robert T. Smith and Charles Tarpley were indicted for affray; they were found guilty by the jury's verdict; and Smith alone was sentenced on this conviction
[ 169 Pa. Super. Page 329]
for a term of not less than one and one-half years and not more than three years in the Western State Penitentiary.
The present appeals to this Court are by Truitt, Allen, Peay, and Smith. The cases grew out of the same factual situation, and the charges were tried before the same jury. The appeals will be disposed of in one opinion.
Appellants do not question the sufficiency of the evidence to sustain the verdicts. Their points relate to the refusal of a new trial, and the questions presented are based on (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 preliminary hearing was held.
A review of the evidence produced at the trial is essential to an understanding of the issues. The Ellay Company of New York City, a wholesale clothing concern, had a number of retail outlets or stores under the name of Eagle Clothing Company, a separate corporation. An Eagle Clothing Company store was located in New Kensington, Westmoreland County. Employes of Ellay Company in New York, represented by Local 65 of the Wholesale and Warehouse Workers Union, had been on strike for some time prior to March 18, 1950. To more effectively conduct the strike, Local 65 in New York City hired persons to picket the various retail outlets of Ellay Company. Smith, although not a member of Local 65, was sent from New York City to New Kensington, where he, as the leader, hired Peay and
[ 169 Pa. Super. Page 330]
Tarpley from Pittsburgh, together with other made and female pickets. The pickets were maintained by Local 65 at a Pittsburgh hotel and transported daily to New Kensington to walk back and forth in front of the Eagle Clothing Company store. Picketing had been in progress for many days prior to March 18, 1950. The pickets were not employes of the Eagle Clothing Company store in New Kensington or of Ellay Company in New York; they were not members of, but merely hired by, Local 65. There was no labor trouble or strike in the New Kensington store, and the employes were not members of or affiliated with Local 65.
Truitt operated a dental technician's office on the second floor of 937 Fourth Avenue, New Kensington, and resided with his wife and family in an apartment on the third floor. An official of Local 65 in New York City had directed Smith to contact Truitt in New Kensington. The pickets, including all the defendants, used Truitt's office and apartment for their personal convenience.
About 8:30 p. m. on March 18, 1950, a customer of the Eagle Clothing Company, one John Fee, was attacked and beaten by Smith and other pickets as he was leaving the store after having made a purchase. It was testified that Allen, Peay, and Tarpley were involved. Fee's friends came to his rescue, and a general fight and disturbance ensued with many people engaged. The prosecutor, Captain Bordonaro, who had been called to the scene of the disturbance, saw Smith break away from the group and run. Bordonaro went after Smith who ran into the rear entrance of the building in which Truitt's office and apartment were located. Bordonaro returned to the scene to procure the assistance of another officer. Thereafter he ...