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COMMONWEALTH v. TOMASKI (11/21/51)

November 21, 1951

COMMONWEALTH
v.
TOMASKI



COUNSEL

Paul C. Van Dyke, James A. Cochrane, Chester, for appellant.

C. William Kraft, Jr., Dist. Atty., William H. Turner, Asst. Dist. Atty., Media, for appellee.

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

Author: Dithrich

[ 170 Pa. Super. Page 137]

DITHRICH, Judge.

Defendant stands convicted of assault and battery with intent to kill. He was also convicted on three other bills growing out of the same action but was sentenced only on indictment No. 223 November Sessions, 1950, in the Court of Quarter Sessions of Delaware County. It is from the judgment of sentence at No. 223 that he has appealed.

There were no eyewitnesses to the alleged offense, except the two principals. The prosecutor, Edwin (Ike) Eisenhower, testified that on Saturday, September 16, 1950, he had played a number with defendant which 'hit', following which he and defendant had spent the evening together eating and drinking at Tinicum Inn, Essington, Delaware County, Pa. He said defendant told him he had hit for $450 and that he had spent freely of his winnings in treating defendant, who in turn treated him, and in setting up drinks for the house. Defendant was drinking straight whiskey; Eisenhower drank only beer.

When the Inn closed at midnight, the defendant told Eisenhower he would take him to the Polish-American Club, where he would be paid off by Big Jake Shanko. They got into Tomaski's automobile; but, instead of driving to the Club, he drove to an isolated spot along the river road in back of the Merchant Marine Base, where he stopped his car and 'put' two guns on Eisenhower. In the ensuing struggle the prosecutor was struck over the mouth with one gun, resulting in a broken denture, and his right wrist was struck and broken with the other gun. He was forced out of the automobile

[ 170 Pa. Super. Page 138]

    and pushed down an eight or ten foot embankment, after which defendant fired three shots at him. He managed, with the aid of his left hand -- his right hand being useless because of the broken wrist -- to pull himself back up the embankment. When he reached the top, his left hand came in contact with one of the guns. Carrying the gun in his left hand he walked two miles to the Club, where he found the defendant with Shanko. He demanded to know of defendant what he was trying to do, 'trying to bump me off for a lousy $450? * * * A fellow grabbed hold of me and he said what are you doing. I said I don't know but he tried to kill me -- take this gun.' Both Tomaski and Shanko then ran out the back door of the Club. The prosecutor was placed in a cab and taken to the hospital, where his right wrist was placed in a splint.

The defense was a flat denial of the prosecutor's testimony, except that defendant admitted that Eisenhower had been in his car for a short time in the evening of Saturday, September 16. He denied, however, that he was taken in the car from the Tinicum Inn. He further denied that he had been there drinking with Eisenhower; and the Chief of Police of the Township testified, without objection, that in the course of his investigation of the alleged assault he was told by the proprietor of the Inn that neither of the men had been in his place that evening. Tomaski testified that, when he stopped his car in front of Small's Tavern on the Tinicum Road about six blocks from the Inn between 10:30 and 11:00 p. m., Eisenhower opened the door and got in the seat beside him. He was mumbling something -- he couldn't understand what -- and asked to be taken home. Defendant didn't know exactly where he lived but he drove near to where he thought he lived and there put him out of his car. Defendant then returned to Small's Tavern. John Polinski and his wife testified to meeting defendant at the Tavern between 11:00 and

[ 170 Pa. Super. Page 13911]

:30 and going to the Club with him and a waitress from the Tavern after the Tavern closed at 12 o'clock. The evidence is conflicting as to what took place at the Club, but we do not attach much significance to it. There was testimony, however, that Eisenhower ...


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