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COMMONWEALTH v. BURDELL (01/03/55)

January 3, 1955

COMMONWEALTH
v.
BURDELL, APPELLANT.



Appeals, Nos. 25 and 26, March T., 1955, from judgment of Superior Court, April T., 1954, Nos. 125 and 126, affirming judgments of Courts of Oyer and Terminer and Quarter Sessions of Butler County, June T., 1952, Nos. 2 and 23, in case of Commonwealth of Pennsylvania v. Fred Burdell. Judgment reversed.

COUNSEL

E. O. Golden and Edward J. Steiner, with them Armand R. Cingolani, Alexander Unkovic and Kountz, Fry & Meyer, for appellant.

Charles J. Margiotti, Special Prosecutor, with him V. J. Rich, Assistant, and Clark H. Painter, District Attorney, for appellee.

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

Author: Stern

[ 380 Pa. Page 45]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

A petition filed by defendant for the allowance of an appeal from the judgment of the Superior Court (176 Pa. Superior Ct. 219, 107 A.2d 739) affirming his conviction and sentence on the charge of armed robbery seemed to us to establish a reasonable doubt whether he had had a fair and proper trial and therefore we allowed this appeal.

On the early morning of March 12, 1952, one Saul, a resident of Butler, went, together with three friends, Fratta, Mendocini and Vergili, to a hotel in Pittsburgh, where they indulged in a drinking orgy that apparently continued on during that entire day. In the late evening they started to return to Butler in Saul's automobile, Mendocini driving. The Commonwealth produced evidence to the effect that instead of pursuing a direct route the automobile was driven to a point near Rankin where it was stopped by defendant, Fred Burdell, who was, and for 20 years had been, a policeman and was then in uniform; that defendant asserted that the car had been driven through a stop sign and charged also that the occupants were numbers writers; that he threatened he would confiscate the car but suggested that he would accept a bribe to "fix" the case; that Saul offered him $100 but on defendant's indicating that he wanted more Saul took out his wallet and Fratta extracted from it $2,600 which he handed to defendant; that defendant then ordered them to get out of the district and stay out.

A witness testified that on the morning of the following day, March 13, he saw five men in the Court House in Butler, one of whom was being asked such questions as "Did you find the safe?" and "Did you bring the money?" He claimed to identify one of those

[ 380 Pa. Page 46]

    men as Vergili and another as the defendant; the others were unknown.

On the afternoon of March 14, while Saul's wife was in their home in Butler but Saul himself apparently absent, three armed men entered the house. Two of them tore out the telephone, took Mrs. Saul to the upstairs hall, struck her and cut her face. Meanwhile the third man opened the safe which was on the first floor and extracted over $100,000 in cash and bonds. The three then joined a fourth man who had remained outside, entered an automobile and drove away. Mrs. Saul, a few days later, identified defendant from a photograph shown her in the Detective Bureau, and again in person when he was stood up before her, as being one of the men who had been engaged in the robbery and had assaulted her. At first she also identified Vergili, Fratta and Mendocini but subsequently retracted her identification of Vergili and Mendocini. Defendant, Vergili, Fratta and Mendocini were indicted in Allegheny County for the alleged crime committed at Rankin on the evening of March 12, but they have never been tried on that indictment. Defendant alone was indicted and trial in Butler County on charges of armed robbery and assault and battery allegedly committed at the Saul house on March 14. He was found guilty and his conviction and sentence were, as already stated, affirmed by the Superior Court.

There were, in our opinion, several errors committed in the course of the trial which we shall briefly note hereafter, but one of them impresses us as having been particularly flagrant and in itself necessitates the granting of a new trial. We refer to the fact that the court allowed the Commonwealth, under objection, to put in evidence ...


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