Lemuel B. Schofield, W. Bradley Ward, Philadelphia, for appellant.
John M. Kurtz, Jr., West Chester, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 293]
This is the appeal of the defendant, Vincent Rossi, from judgment of sentence on his conviction of subornation of perjury. On the testimony of Ernest Twyman, a numbers writer, a true bill had been found
[ 170 Pa. Super. Page 294]
by a grand jury charging him with setting up and conducting a lottery. On the trial of Rossi in quarter sessions, on that charge, Twyman, a Commonwealth witness, changed his testimony with the result that Rossi was discharged for lack of evidence. On the proofs in the present case that Rossi induced Twyman to commit perjury in the trial of the lottery charge, Rossi was convicted of subornation. It is contended that the evidence is insufficient to establish either that Twyman committed perjury or that perjury was suborned by the defendant.
Twyman was a numbers writer in and about Coatesville. It the present trial he testified that it was Rossi who conducted the lottery and that he wrote numbers exclusively for him. Rossi lived in Reading but also maintained an apartment in Coatesville. There is evidence that he was the proprietor of a cigar store on North Second Avenue in Coatesville; this he denied contending that the store was operated by his son. But the evidence clearly charges him with some dominion over the premises. Twyman testified that during August 1949 he had delivered numbers slips and the proceeds in money to Rossi at the cigar store every day for about a week but the arrangement was then terminated and Rossi notified him that thereafter he would pick them up at Twyman's home. Early in the afternoon of August 17, 1949, Rossi was seen by four State Police officers, alone in his automobile, parked in front of Twyman's house on the easterly edge of the City of Coatesville. As the officers approached they saw Twyman standing beside the driver's seat leaning against the car and talking to Rossi. One of them observed Twyman holding something in his hand. The officers ordered Rossi to remain in his automobile while all four of them went into Twyman's house and searched the premises. There the officers found slips,
[ 170 Pa. Super. Page 295]
tickets, charts and other paraphernalia connecting Twyman with the conduct of a numbers lottery. About one-half hour later the officers left Twyman's house and then directed Rossi to drive his car to the State Police barracks. There they searched the car but found nothing tangible to indicate that Rossi was in the numbers racket. Twyman later pleaded guilty to a charge of traffic in lottery tickets in violation of § 602 of the Penal Code of June 24, 1939, P.L. 872, as amended, 18 P.S. § 4602.
Whether Twyman committed perjury as a Commonwealth witness in the trial of Rossi on the lottery charge, depends upon the truth of the following incident, as related by him under oath in the present trial. He testified that Rossi came to his home on the above occasion of August 17, 1949, to pick up the returns of the numbers written by him on that day; that he had a paper bag in his hand for delivery to Rossi, containing numbers slips and money, and was standing at the curb alongside of Rossi's car talking to him; that at the approach of the police officers he 'got rid of the bag quick' and dropped it with its contents into Rossi's car. He was positive in his statement under oath to that effect. Perjury is alleged to have been committed by him when he testified, as a witness in the prior trial of Rossi on the lottery charge, that he never had any dealings 'with him relating to numbers' and that he 'never turned numbers slips to Vincent Rossi'. In emphasizing the importance of determining the truth of the above incident, the trial judge, in all fairness to the defendant, charged the jury: '* * * to ...