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January 7, 1957


Appeal, No. 331, Jan. T., 1956, from judgment of Superior Court of Pennsylvania, Oct. T., 1956, No. 63, affirming judgment of Court of Quarter Sessions of Philadelphia County, No. 1016, September Sessions, 1954, in case of Commonwealth v. Vincent Panetta et al. Judgment affirmed.


I. Raymond Kremer, with him Rush, Kremer & Maerz, for appellant.

Thomas M. Reed, Assistant District Attorney, with him Victor H. Blanc, District Attorney, and James N. Lafferty, First Assistant District Attorney, for appellee.

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

[ 387 Pa. Page 453]


The judgment of sentence is affirmed on the opinion of Judge ERVIN for the Superior Court reported in 181 Pa. Superior Ct. 547, 124 A.2d 458.


Vincent Panetta, Angelo Massone, and James Crawford were indicted on charges of receiving stolen goods, accessory after the fact to larceny, and conspiracy. Panetta and Massone pleaded not guilty to all charges and asked for a jury trial. Crawford pleaded guilty to receiving stolen goods and asked to be tried by a judge without jury on the other charges. Judge KUN of the Court of Quarter Sessions of Philadelphia County, before whom the defendants appeared, decided to try all cases together and simultaneously, thus sitting as a judge with jury in the indictments against Panetta and Massone, and sitting as a judge without jury in the charges against Crawford. At the end of the Commonwealth's evidence, the Trial District Attorney moved to nolle pros the charges of conspiracy and accessory after the fact to larceny. The motion was granted, thus leaving only the charge of receiving stolen goods to be considered. The jury found Panetta and Massone guilty, and Judge KUN imposed a jail sentence against

[ 387 Pa. Page 454]

    both. He later vacated Massone's prison sentence. Panetta has appealed, seeking a new trial on two grounds: (1) that the Trial Judge's prejudicial attitude against the defendants, his excessive participation in the trial, and his argumentative charge to the jury denied the defendants the fair trial guaranteed under the Constitution; and (2) that the consolidation of a jury trial with a trial by judge alone deprived Panetta and Massone of a trial by jury as known at common law and as guaranteed by our Constitution.


A reading of the record in this case impels one reluctantly, but helpless against the facts, to the conclusion that Panetta and Massone did not receive that fair, impartial, and unprejudiced trial which is the pride and the glory of our American courts.

The Trial Judge, instead of allowing the Trial District Attorney to present his case with as much vigor as he chose, consistent with correct trial procedure, monopolized the prosecution in a manner which proclaimed to all who gave ear, or followed the proceedings with half an eye, that he was determined to ensure a conviction of the defendants at all costs. The Trial Judge probably believed the defendants guilty but so far as Panetta and Massone were concerned, it was not for him to pronounce their guilt. The Constitution leaves the determination of guilt or innocence to the jury. The fact that occasionally the Judge told the jury that upon them depended the determination of the factual issue did not purge his fault which consisted of a never-ceasing demonstration, by attitude, questions, words, sneers sarcasm and threats, that he was in no mood to tolerate a not guilty conclusion to the contest. The man who tells a stranger that he has a choice of routes in reaching his destination and then leads him

[ 387 Pa. Page 455]

    through a labyrinth of roads and paths to the top of a cliff cannot, when the stranger falls off the cliff, exculpate himself by saying that it was not he who pushed him off the precipice. A jury, and especially a new jury, as this one was, looks to the judge for guidance and direction. If he shows by his every action that he wants the defendant convicted, why should they thwart his will when he is assuredly regarded as the fount of wisdom and the embodiment of justice? Novitiates as they are in a courtroom and overawed by the majesty of the law and its ceremonious procedure, they are only too eager to give heed to the wishes of the man who is the voice of authority, even as travelers in a foreign land will gladly trail in the wake of a native guide.

A new jury is apt also to reflect a judge's unconcealed feelings. If he scolds a lawyer before him, they can only assume that the lawyer is deserving of the censure. The Trial Judge here did not attempt to hide his displeasure with defense counsel. Although the printed record does not reproduce grimace, gesture, or intonation of voice, it would be difficult to believe that when Judge KUN made the following remarks he accompanied his harsh language with a gentle demeanor: "You are just barking up the wrong tree." "You are objecting? Very well, you are objecting and I will ask you to take your seat." "Mr. Rosenfield, we ar going to do everything within our power to bring out the truth. Take your seat. You have your motion and it has been refused."

When these incidents occurred it is quite probable that Mr. Rosenfield, in making his motions, had risen to his feet out of deference and respect for the Court. In this commendable show of courtesy he was entitled to be treated like a lawyer and not as an errant schoolboy; he was entitled not to be belittled in the presence

[ 387 Pa. Page 456]

    of the jury. Every humiliation suffered by a lawyer in a court weakens his client's case, and no judge has the right to strike at an accused by crippling his defender.

A judge, of course, may ask questions during a trial. When, with a few questions, he can clarify an obscurity or untangle a seeming complication, it is his duty to intervene to the extent necessary to enlighten the jury on the issue they are to resolve. A judge is not merely a robed referee. He is to exercise command, and it is his job to maintain decorum and a dignified atmosphere in the solemn proceeding of the ascertainment of justice. However, when he asks questions, his questions should be interrogations, not fulminations or bludgeons. And he should never relinquish the sceptre of serene authority to pick up the sword of partisan attack.

The Commonwealth's case here was based on the proposition that Panetta, Massone, and Crawford had trafficked in automobile inspection stickers which they purchased from an Angelo J. DiStefano, employee in a printing establishment who had stolen the stickers from his employer. The Commonwealth called for examination a Cecil R. Gilbertson, presumably to testify that Massone, after obtaining stickers from DiStefano, sold two of them to Gilbertson. Of the questions put to Gilbertson in direct examination, some two-thirds of them came from the Judge who was obviously determined that this witness should carry forward the Commonwealth's case, even if the Judge had to lift him when he stumbled, scold him when he failed to follow a suggestion, and threaten him when he hesitated in making positive statements because he was in doubt.

It seems that several people were involved in the transaction which made Gilbertson a purchaser of stolen goods, but while he "believed" that Massone

[ 387 Pa. Page 457]

    was present at the time of the sale, he thought there was "confusion." The Judge took the questioning away from the District Attorney and when the witness stated that he knew Massone as a trucker, he asked: "Q. Did you catch up with Massone then, whom you knew as a trucker? A. I knew him as Tiny. I didn't know his name."

Here is where Judge KUN lifted the stumbling witness: "But he is one of the men there, one of the defendants, is that right?"

But with this "fingering" by the Judge, the witness still hesitated: "Yes. There is confusion about that."

But the Judge wouldn't let it remain at that and declared: "No confusion about that. How did you contact him?"

The witness went on: "I asked him if he could help me to get a sticker and he said, 'I will try. I will see'. And I think it was in the afternoon or something like that, that he came back to the bench."

Eagerly the Judge asked: "Yes?"

The witness continued: "A. And if I remember correctly, I had something in my hand that I was looking over and right there on the bench was laying the stickers. Q. And he came back to the bench? A. That is right, but he was not alone. Q. That is all right. He came back to the bench? A. He came back to the Bench, yes. Q. And there was the sticker? A. Yes. Q. There had not been a sticker there before? A. No, no. Q. But when he came there, there was a sticker there? A. That is right, and there was confusion in my mind as to whether it was him or somebody else.

With alacrity the Judge decided to clear up the "confusion:" "Q. What did you do with the money? A. I laid it there and which one picked it up, I don't know, because I didn't look at that, because I was

[ 387 Pa. Page 458]

    looking at the stickers. Q. You had your mind on the stickers? A. That is where I had my mind and I didn't actually see Massone or half a dozen other guys pick it up. But it was picked up. There is no doubt about that. It wasn't there when they went out. Q. Masson came there with the stickers? A. Yes. Q. And whether - A. Whether Massone actually picked it up or somebody else picked it up from the bench, I don't recall."

Here the Judge contributed an observation all his own: "Well, it is as good one way as the other. No angel picked it up."

But excluding the angels, the jury, from the Judge's statement that it was "as good one way as the other," could believe that the Judge meant that Panetta could have been "the other."

The District Attorney attempted to cross-examine this Commonwealth witness by referring to a statement which Gilbertson had allegedly made prior to the trial. Defense counsel objected and the Judge ordered him to his seat, whereupon the Judge grasped the weapon of cross-examination himself: "Q. You said there, 'I purchased some inspection stickers from him'? A. Yes. Q. Look here at me a minute. If that is so, why all this business of ring-around-the-rosy."

The Judge was rather tired of Gilbertson's circumlocutions, so he added one of his own. But the "ring-around-the-rosy," with which the Judge charged Gilbertson was merely the witness's reluctance to be positive about something of which he was in great doubt. After all, a person's liberty was involved. He realized this if the Judge had forgotten about it.

The Judge at this juncture was quite angry with Gilbertson and his "ring-around-the-rosiness", and proceeded to show his ire: "You were asked what your

[ 387 Pa. Page 459]

    dealings with him were and you said, 'I purchased some stickers from him.' Therefore, why all this business about your laying something down and you don't know who picked it up, etc., etc.? Nobody told you what to say in the statement? A. No. Q. You could have said anything you wanted. You could have said, 'I don't know the man, I never heard of him' or anything you wanted to say, ...

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