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COMMONWEALTH v. NAPOLI (01/17/56)

January 17, 1956

COMMONWEALTH
v.
NAPOLI, APPELLANT.



Appeals, Nos. 195, 196, 197 and 198, Oct. T., 1955, from judgment of Court of Quarter Sessions of Philadelphia County, Oct. T., 1952, Nos. 1537, 1538, 1539 and 1540, in case of Commonwealth of Pennsylvania v. Joseph Napoli. Judgment affirmed.

COUNSEL

W. Bradley Ward, with him Herman Steerman, for appellant.

Victor Wright, Assistant District Attorney, with him William T. Gennetti, Assistant District Attorney, Vincent G. Panati, First Assistant District Attorney and Samuel Dash, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Wright

[ 180 Pa. Super. Page 267]

OPINION BY WRIGHT, J.

On the afternoon of March 21, 1950, a robbery occurred in a branch office of the Receiver of Taxes located at 1804 South Broad Street in the City of Philadelphia. Joseph Napoli was the cashier on duty at the time, and the theory of the Commonwealth was that there was a conspiracy between him and the actual robbers. Napoli and three of his alleged co-conspirators were subsequently indicted (October Sessions 1952) on bills nos. 1537, 1538, 1539, and 1540, charging respectively, armed robbery, burglary, conspiracy to commit burglary, and conspiracy to commit robbery. The three alleged co-conspirators pleaded guilty and, together with a fourth alleged co-conspirator who was not indicted,*fn1 testified for the Commonwealth at the trial of Napoli. The jury returned a verdict of guilty. Napoli's motions for a new trial and in arrest of judgment were overruled. Sentence was imposed, and this appeal followed.

[ 180 Pa. Super. Page 268]

At the trial appellant called twenty-one witnesses who testified concerning his good reputation as an honest, truthful, and law abiding citizen. The sole question before us on this appeal, as stated by counsel for appellant, is as follows: "Did the trial judge err in his instructions to the jury with respect to the meaning and effect of evidence of defendant's good reputation". The pertinent portion of the charge appears in the footnote.*fn2

In giving instructions to the jury, especially concerning a subject which must be dealt with so frequently as evidence of good reputation, trial judges should adhere to language which has met with judicial approval.*fn3 To depart therefrom is only to invite attack upon the charge. However, in the case at bar no exception, either specific or general, was taken, nor was any request made for elaboration. It is the duty of

[ 180 Pa. Super. Page 269]

    trial counsel to call attention to matters which have not been properly covered in the charge: Commonwealth v. Salerno, 179 Pa. Superior Ct. 13, 116 A.2d 87. Counsel may not remain silent and take his chance of a verdict and then, if it is adverse, complain of matters which could have been immediately rectified: Commonwealth v. Walker, 178 Pa. Superior Ct. 522, 116 A.2d 230. The following excerpt from the opinion of Mr. Justice ARNOLD in Commonwealth v. Cisneros, 381 Pa. 447, 113 A.2d 293, is particularly appropriate:

"The charge by the court on reasonable doubt was unimpeachable in the light of the fact that no further elaboration of instructions was asked for by the trial counsel. While the court did not specifically charge that character evidence alone might work an acquittal of the defendant, no exception was taken to this charge nor was the matter raised in a motion for new trial. However, in the absence of a request for such instruction, it was not error to fail to charge it. This court said in Commonwealth v. Barnak, 357 Pa. 391, 419, 54 A.2d 865: 'Taking an appeal in criminal cases is not a game in which the appellant wins if he can show that the trial judge fell a few degrees short of perfection in the conduct of his trial. This court has consistently refused to reverse convictions of murder in the first degree, even with ...


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