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COMMONWEALTH v. MOLINARI (07/21/55)

July 21, 1955

COMMONWEALTH
v.
MOLINARI, APPELLANT.



Appeal, No. 56, Oct. T., 1955, from judgment of Court of Quarter Sessions of Philadelphia County, Dec. T., 1953, No. 10, in case of Commonwealth of Pennsylvania v. Joseph J. Molinari. Judgment reversed.

COUNSEL

Lemuel B. Schofield, for appellant.

Samuel Dash, First Assistant District Attorney, with him Victor Wright, Assistant District Attorney, Howard L. Criden, Assistant District Attorney and Richardson Dilworth, District Attorney, for appellee.

Before Rhodes, P.j., Ross, Gunther, Wright, Woodside, and Ervin, JJ. (hirt, J., absent).

Author: Gunther

[ 179 Pa. Super. Page 428]

OPINION BY GUNTHER, J.

The defendant, a magistrate in the City of Philadelphia, was indicted, tried and convicted of subornation of perjury. The evidence on behalf of the Commonwealth disclosed the following situation. On December 20, 1952, Anderson Sayles was arrested on a lottery charge, as was Benjamin DeStefano shortly thereafter upon Sayles' identification of him as the person to whom he turned in numbers slips. Sayles later signed and swore to a writing identifying DeStefano. The following day at his hearing Sayles denied knowledge of DeStefano and stated that he turned his slips in to a colored man. He repeated this story when he

[ 179 Pa. Super. Page 429]

    pleaded guilty to the lottery charge in Quarter Sessions Court. In this trial he testified that he had lied when he denied knowing and working with DeStefano and that he changed his story at the instance of defendant. At the time of Sayles' first hearing on December 21, 1952, he was introduced to defendant by DeStefano just outside the hearing magistrate's office. The three men, together with Clarence Arthur who had been arrested with Sayles, went into a room in the office of a bondsman. In that room, immediately prior to Sayles' hearing, the defendant allegedly told Sayles to deny knowing DeStefano, that he turned numbers slips over to a colored man, and that the gang would pay all his expenses. The defendant sat on the bench with the hearing magistrate at Sayles' hearing. Sayles continued to deny any connection with DeStefano until he was indicted for perjury. He testified that DeStefano later paid his fine and gave him a retainer for a lawyer.

The defendant denied the charges. He explained his presence at Sayles' hearing by stating that he was then a new magistrate, needed experience, and had been invited to that particular court on that day to learn procedures. He admitted conversing with Sayles in the bondsman's office, but contended that he merely recommended bail procedures. DeStefano refused to testify as to the conversation. Arthur testified that although he was in the same room he failed to hear the conversation.

Numerous allegations of error are made by defendant. Some of them, such as the admissibility of certain evidence and the proof of perjury under oath, are without merit and need not be detailed here in view of our decision. However there are several allegations of error in respect to prejudicial remarks and questions by the district attorney which have merit. This

[ 179 Pa. Super. Page 430]

    trial engendered considerable public interest and heat and was fraught with political connotations. The result was a series of charges and counter charges and personal recriminations throughout the course of the trial. While cross examining one of the defendant's witnesses, the district attorney asked the witness if he didn't know a certain Bruno, reputed head of a criminal gang and an intimate friend of the defendant. There had been no testimony concerning this person theretofore. A similar question was asked of a character witness for defendant in respect to an alleged killer. Objection was sustained but the implication of the question remained. Altercations frequently ensued between defense counsel and the district attorney. In one of these the latter referred to the fact that the former had once been locked in jail while a public official and had been reprimanded as an attorney by the Supreme Court of Pennsylvania. At another point the district attorney expressed the hope that a Commonwealth witness would slap defense counsel between the eyes. The record is replete with similar improper statements and remarks and there is no need to repeat each one in detail.

In addition the district attorney in his summation to the jury engaged in a highly emotional and improper appeal the gist of which was that defendant was a corrupt politician in alliance with the underworld and that the district attorney and his staff were risking their lives and futures in an effort to clean up the situation. The summation included a clear appeal to passion and fear by statements that there had been threats of reprisal. A great deal of this was unsupported by any evidence whatsoever.

The Commonwealth argues that the obviously improper remarks by the district attorney throughout the trial were provoked ...


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