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COMMONWEALTH v. BUTTS ET AL. (COMMONWEALTH V. NETKOWICZ (11/15/51)

November 15, 1951

COMMONWEALTH
v.
BUTTS ET AL. (COMMONWEALTH V. NETKOWICZ, APPELLANT.)



COUNSEL

Theodore Netkowicz, pro. per.

Damian McLaughlin, Dist. Atty., H. J. Johnson, Jr., Asst. Dist. Atty., Erie, for appellee.

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

Author: Reno

[ 170 Pa. Super. Page 126]

RENO, Judge.

Butts, Petrie and Netkowicz were indicted for burglary. Butts pleaded guilty; Petrie entered a plea of nolo contendere; and they have been sentenced. Netkowicz was convicted by a jury; his motions for a new trial and arrest of judgment were denied; and he appealed. The sole question raised on appeal relates to an incident which occurred when Butts testified as a Commonwealth witness.

A railroad watchman observed the three defendants parking an automobile in front of a clothing store at 19th and Parade Streets, in Erie, at 1:30 a. m., and enter an adjacent blind alley. He saw Netkowicz walking between the side of the building and box cars in the railroad yard. Petrie stood at the corner, evidently a 'look-out'. Butts, according to his own testimony, was a steeple jack by trade, and he scaled an I-beam structure on the side of the building, crossed over the roof, entered the building through a skylight window, and made his way through the interior of the building down to the first floor where he opened a side door. At that moment the police, summoned by the watchman,

[ 170 Pa. Super. Page 127]

    appeared; the defendants fled but were soon apprehended. Subsequently, on the same day, Petrie and Butts gave sworn statements to the police, incriminating Netkowicz, and both stated they would testify against appellant.

Both became recalcitrant witnesses. Petrie testified they had come from Ohio to Erie in his car at appellant's suggestion and upon reaching the city limits appellant took the wheel. He denied having any conversation with appellant prior to parking the car, whereupon the assistant district attorney pleaded surprise and asked leave to cross-examine the witness on the basis of his prior sworn statement. The court allowed the plea and permitted the prosecuting officer to cross-examine in order to show the inconsistent prior statement. The correctness of this ruling is not questioned by appellant but becomes significant in view of subsequent developments. Petrie testified that the facts given in his sworn statement were untrue and that it was obtained by force and coercion. On the following day Petrie was recalled when he recanted his previous testimony; testified he had lied regarding the beating; that the facts contained in his statement were correct; and that his testimony the prior day was untrue.

Butts, who was called as a witness after Petrie's first appearance, displayed a hostile attitude even before he was sworn. When called, he thus addressed the court: 'I have been threatened by perjury by the district attorney here and contempt of court if I'd go on the stand, and I have made a statement; I don't know what was in the statement, I don't remember what was in it, and in other words, I don't want to make a statement for the defendant or against him.' The trial judge commanded him to 'take the stand', and he was sworn. He testified that he came to Erie with Petrie and Netkowicz in Petrie's car. He was

[ 170 Pa. Super. Page 128]

    asked, 'During the course of the early morning of May 13th was that car parked in the vicinity of 19th and Parade?' to which he answered, 'I don't know.' He was asked, 'Were you in the vicinity of 19th and Parade at that time?' and he answered, 'I don't know.' Again the assistant district attorney pleaded surprise; his plea was sustained; and he was permitted to cross-examine the witness. The witness' attention was then drawn to his sworn statement, parts of it were read to him, and he was asked whether he recalled the questions and answers contained in it. A statement*fn1 by Netkowicz's counsel halted interrogations along that line, and the record shows no direct answer to the question relating to his recollection concerning the ...


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