Fred L. Brothers, Dist. Atty., Joseph J. Baer, Uniontown, Frank P. Lawley, Jr., Asst. Deputy Atty. Gen., Robert J. Trace, Deputy Atty. Gen., Robert E. Woodside, Atty. Gen., for appellant.
Anthony Cavalcante, Uniontown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Gunther, JJ.
[ 171 Pa. Super. Page 484]
Elwood Broadwater, John Vanamin, Weldin Nicholson and Benjamin King*fn1 were charged with violating
[ 171 Pa. Super. Page 485]
§ 313 of the Pure Stream Law.*fn2 At the end of the Commonwealth's case in chief the court below sustained defendants' demurrer on the ground that the prosecution had failed to sufficiently identify defendants. The Commonwealth has taken this appeal.
The indictment charged appellees with having operated a coal mine without having first secured the approval of the Sanitary Water Board of plans for the disposal of acid mine drainage as required by § 313 of the Pure Stream Law.
'In passing on a demurrer to the Commonwealth's evidence in a criminal case, a court does not decide whether or not it would find a defendant guilty on such evidence but whether or not the evidence if credited by the jury is sufficient to warrant it in coming
[ 171 Pa. Super. Page 486]
to a conclusion beyond a reasonable doubt that the defendant is guilty as charged.' Commonwealth v. De Petro, 350 Pa. 567, 573, 39 A.2d 838, 841. The sole witness for the prosecution bearing on the question of identity was the prosecutor, a state police officer, who testified from notes made by him that a man who identified himself as Vanamin stated to the prosecutor 'that him along with Broadwater, Benjamin King and Weldin Nicholson had leased the property from Myers Layman and that they were digging the coal and operating the mine and paying Mr. Layman * * * a royalty for each ton of coal taken from the mine.' The prosecutor testified that Broadwater was present when this alleged conversation took place, but could not say whether Broadwater had heard the statement made by Vanamin. As to Broadwater, this is the only evidence implicating him. Assuming arguendo that Broadwater had heard the alleged statement of Vanamin, such is clearly insufficient to support a verdict of guilty as to him. In Commonwealth v. Manuszak, 155 Pa. Super. 309, 38 A.2d 355, it was said that 'Evidence of defendant's assenting silence in the face of an accusation of guilt, even when admissible, is ...