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December 29, 1953



Ivan Michaelson Czap, Philadelphia, for appellant.

A. Leon Higginbotham, Jr., Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Reno

[ 175 Pa. Super. Page 43]

RENO, Judge.

Appellant was convicted of drunken driving. His defense was that he was neither drunk nor driving.

[ 175 Pa. Super. Page 44]

On his appeal he contends (a) that the court below abused its discretion in refusing his motion for a continuance; (b) that his trial was unfair and the conduct of the trial judge prejudicial; and (c) that the evidence does not support the verdict.

Due to an unfortunate misunderstanding between appellant's counsel and an assistant district attorney, shared perhaps by the trial judge, appellant was compelled to stand trial when all of his seven witnesses were absent.*fn1 The record is not so clear and explicit that a finding of abused discretion can be predicated upon it. Nevertheless, the trial judge knew that appellant's witnesses were unavailable (Record p. 22a) and he should have proceeded in the light of that information, dispassionately and equanimously; and considerately, as when one finds, not to say places, another in jeopardy. Instead, he 'wholly lost sight of the essential requirement that justice must be judicially administered.' Carr v. Mundorf, 311 Pa. 214, 216, 166 A. 789, 790.

Unless this opinion is expanded to inordinate lengths, the judicial misconduct revealed by the record must be summarized for the most part, and several typical episodes must suffice to illustrate the general tenor of the trial.

The factual issue was: Who ran into whom, and was appellant under the influence of intoxicating liquor. Herbert Gottleib alleged that appellant drove his car into Gottleib's rear fender. Appellant claimed that his automobile was parked at the curb in front of his residence while he was repairing the radio in it and that in that position Gottleib's car collided with his. He denied that he had drunk intoxicating liquor.

[ 175 Pa. Super. Page 45]

When Gottleib, the first Commonwealth's witness, testified that appellant had driven into his rear fender and, during an ensuing altercation, appellant had gone 'back in the car and grabbed a large screw driver and threatened to stab my father-in-law with it.' the trial judge, no objection having been raised by the Commonwealth, peremptorily halted cross-examination by the statement: 'This does not relate to the charge here. There is no need to cross-examine him. The charge is operating an automobile while under the influence of intoxicating liquor. So far there has been no testimony about that.' The jury might have properly inferred that the screw driver incident was some evidence of intoxication and appellant's counsel was undoubtedly privileged to dispel that inference by cross-examination. Indeed, the trial judge himself drew that inference when in his charge he referred to the incident and stated, 'That might indicate something about his condition, if you believe that testimony.' Yet he interdicted the attempt of appellant's counsel to refute it.

When the same witness stated that he noticed in what position appellant's bumper was after the collision, the trial judge again, without objection registered by the Commonwealth, arrested the cross-examination by declaring: 'I am awfully sorry to have to stop you, but this is irrelevant to the charge here. All of this is irrelevant to the charge.' Yet, since appellant contended that he was not driving, he was undoubtedly privileged to show on cross-examination whether his front bumper carried marks of a recent collision.

When another witness testified to the screw driver incident and also that appellant was under the influence of intoxicating liquor, appellant's counsel chose not to cross-examine, a subtle trial strategy frequently employed by counsel who do not wish to emphasize damaging testimony by its repetition. But the trial

[ 175 Pa. Super. Page 46]

    judge remarked: 'This is the first related testimony and now you say you don't want to ask him anything', thereby accentuating the omission and doubtless destroying the effect of counsel's adroit maneuver.

A police surgeon, to whose testimony further reference will be made, was asked on cross-examination: 'Q. Doctor, did you notice any other irregularity about his physical condition? For instance, did he complain to you that he had been hit on the head? A. No, sir. He only told me that he had been drinking whiskey with beer chasers. That is the only conversation I had with him, excepting requesting him to walk a straight line. He didn't mention anything to me at all about injuries.' Whereupon the trial judge interjected: 'Being hit on the head would not give a person an alcoholic breath, you see. People could save a lot of money if they could get drunk that way. They would just go around asking people to hit them on the head, that is all.' At another point, when appellant testified he was 'working under the dashboard', repairing the radio, at the moment of the collision, the trial judge exclaimed: 'He was under, but the question is what was he under. The charge is that he was under the influence of intoxicating liquor. Now he says he was under the dashboard or something like that.' Whether intended as withering sarcasm or sardonic ...

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