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COMMONWEALTH v. EVANCHO (11/08/54)

November 8, 1954

COMMONWEALTH
v.
EVANCHO, APPELLANT.



Appeals, Nos. 248 and 249, March T., 1954, from judgments of Superior Court, April T., 1953, Nos. 121 and 122, affirming judgments of Court of Oyer and Terminer of Allegheny County, Jan. T., 1952, No. 45, in case of Commonwealth of Pennsylvania v. Charles Evancho and John Fela. Judgments affirmed. Same case in Superior Court: 175 Pa. Super.Ct. 225. Indictments charging defendants with robbery, receiving stolen goods, and assault and battery. Before MORRIS, P.J., specially presiding. Demurrer sustained to evidence on charge of receiving stolen goods; verdicts of guilty of remaining charges as to both defendants, and judgments of sentence thereon. Defendants appealed to the Superior Court, which affirmed the judgments and sentences of the court below. Appeal by defendants to Supreme Court allowed.

COUNSEL

A. H. Rosenberg, with him Rosenberg & Rosenberg, for appellants.

Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney and Leonard C. Staisey, Assistant District Attorney, for appellee.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 379 Pa. Page 274]

OPINION BY MR. JUSTICE ARNOLD

The respective judgments of the Superior Court are affirmed on its unanimous opinion written by Judge WOODSIDE.

ING OPINION BY MR. JUSTICE MUSMANNO:

John Revtai, prosecuting witness in this case, testified that on December 24, 1951, he carried on his person $180, all of which was taken from him by the defendants. He explained that $140 of this sum represented collections for a job of opening up a sewer that same day. Defense counsel Mr. Rosenberg, in cross-examination, asked if Revtai had kept a record of the jobs he performed and the amounts of money he received from those jobs: "Q. Do you keep a record of all the jobs you perform? A. Yes, sir. Q. You keep a record of all the income you have or the monies you receive? A. Yes. Q. And all expenses you have? A. Yes, sir. Mr. Staissey: [Assistant District Attorney] May the Court please, I think this line of questioning is wholly irrelevant. The Court: What is the purpose of it? Mr. Rosenberg: I want to know where he worked and the job he did and got a hundred and forty dollars. The Court: He says he had a hundred and forty

[ 379 Pa. Page 275]

    dollars in cash, and we will direct you to confine your cross examination to the examination achieved. You are very far afield. We want to give you every opportunity in the world, but let's stick to the case. Mr. Rosenberg: That is what I am trying to do, Your Honor. Mr. Rosenberg: Q. Can I ask this question or not, Your Honor? Q. Have you brought into court, any record showing that on this date you received this money? Mr. Stassey: May the court please, we object to that. The Court: The objection is sustained. Exception is granted."

I believe the Court was in error when it struck down defense counsel's cross-examination on a vital point in the case. At the oral argument of this cause on appeal, one or two of my brethren stated from the bench that defense counsel's question was improper because he was "fishing." Of course, he was fishing. Most cross-examination is fishing but there is nothing wrong about fishing for the truth. And a certain latitude must be allowed the fisherman unless his piscatorial questioning extends into streams and pools which are so remote in time, distance, and relevancy from the issue involved as to make the inquiry wholly foreign. There was no such fishing remoteness in Mr. Rosenberg's question. As a matter of fact defense counsel was practically fishing in a barrel. Another question or two along the line he was pursuing would have brought to the surface information that could only have been helpful to the jury in reaching a verdict based on discovered facts. Whether Revtai actually had $180 with him on the day of the robbery touched the very kernel ...


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