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COMMONWEALTH v. PANETTA (07/17/56)

July 17, 1956

COMMONWEALTH
v.
PANETTA, APPELLANT.



Appeal, No. 63, Oct. T., 1956, from judgment of Court of Quarter Sessions of Philadelphia County, Sept. T., 1954, No. 1016, in cases of Commonwealth v. Vincent Panetta, Angelo Massone, and James Robert Crawford. Judgment affirmed.

COUNSEL

I. Raymond Kremer, with him Robert J. Thompson and Morris L. Rush, for appellant.

Christopher F. Edley, Assistant District Attorney, with him James N. Lafferty, Deputy District Attorney, and Victor H. Blanc, District Attorney, for appellee.

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

Author: Ervin

[ 181 Pa. Super. Page 549]

OPINION BY ERVIN, J.

The appellant, Vincent Panetta, was found guilty by a jury of receiving stolen goods under Indictment No. 1016. Two other defendants, Angelo Massone and James Robert Crawford, were also indicted for receiving stolen goods under Indictment Nos. 1014 and 1013 respectively. All three defendants were also indicted for conspiracy, under Indictment No. 1018. Massone and Panetta plead not guilty as to all indictments and demanded a jury trial. Crawford plead guilty to receiving stolen goods under Indictment No. 1013 and not guilty as to the conspiracy charge. Crawford agreed to be tried by a judge without a jury. After hearing the evidence the court nol. prossed the conspiracy charge as to all three defendants. The jury rendered verdicts of guilty on the indictments charging receiving stolen goods. Massone and Panetta filed motions for new trial. The motions were dismissed and the defendants were sentenced. Panetta alone appealed.

Angelo J. DiStefano, an employe of a printing concern which had printed automobile stickers for the State, testified that he stole a quantity of them and sold them to the two defendants, Massone and Panetta, for $60.00. He further testified that he delivered the stickers to Panetta and was paid the $60.00 by Panetta. Both defendants denied that they had received the stickers or paid any money therefor. Crawford admitted that he purchased five stickers from DiStefano and paid $10.00 to him therefor. Crawford worked in the printing plant from which the stickers had been stolen. The evidence revealed that the Crawford transaction

[ 181 Pa. Super. Page 550]

    had no connection with the Massone and Panetta transactions except that DiStefano was the seller in both instances. The two sales took place at different times and different places.

In the lower court Massone and Panetta were represented by Leon Rosenfield and Crawford by Thomas Z. Minehart. Panetta's appeal was argued by I. Raymond Kremer, who did not take part in the trial.

On this appeal, for the first time, the question was raised whether a jury and non-jury trial can be tried simultaneously where the facts justify a joint trial. We might well dispose of this question by the rule of law that an appellate court will not consider alleged trial errors which were not brought to the attention of the trial court. Com. v. DeFelippis, 245 Pa. 612, 616, 91 A. 1059; Com. v. Martin, 302 Pa. 118, 124, 153 A. 141; Com. v. Neuman, 151 Pa. Superior Ct. 642, 30 A.2d 698; Com. v. Patrick, 174 Pa. Superior Ct. 593, 594, 101 A.2d 139; Com. v. DiCarlo, 174 Pa. Superior Ct. 611, 613, 101 A.2d 410; Com. v. Donaducy, 176 Pa. Superior Ct. 27, 31, 107 A.2d 139. Appellant argues, however, that this was fundamental error and for this reason should be considered for the first time by the appellate court. No cases directly in point have been cited. There was no objection by trial counsel to the joint trial. We do not see how there could have been any objection in view of the conspiracy indictment No. 1018 against all three defendants. It apparently appeared to no one prior to this appeal that this was error. We have reviewed the record carefully and we believe that ...


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