Appeal, No. 24, April T., 1958, from judgment of Court of Quarter Sessions of Mercer County, June T., 1957, No. 86, in case of Commonwealth v. Homer A. Black, Jr. Judgment reversed.
Henry S. Moore, for appellant.
Edward M. Bell, Assistant District Attorney, with him John Q. Stranahan, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 186 Pa. Super. Page 162]
Defendant was indicted, tried, and convicted on a charge of involuntary manslaughter which involved the death of one John V. Lannigan. This resulted when defendant's automobile in which both were riding went out of control and overturned.
Defendant has appealed from the judgment of sentence imposed by the Court of Quarter Sessions of Mercer County, and asks that a new trial be granted because of trial errors.
The question presented is whether it was prejudicial error for the trial judge to allow the assistant district attorney to comment upon the failure of defendant to call his father as a witness, and in charging the jury as to the effect of such failure.
At the trial defendant testified that deceased was operating the automobile at the time of the accident.
[ 186 Pa. Super. Page 163]
The Commonwealth, to establish the identity of the operator of the motor vehicle at the time of the accident, presented the testimony of two state police officers, Bulo and Peleskey, who removed the occupants of the automobile and interviewed defendant at the hospital the day following the accident. The police officers testified that after the accident they removed defendant, who was unconscious, from the driver's side and from behind the steering wheel of the automobile; deceased was pinned between the folding portions of the front seat. They further testified that the day after the accident defendant when interrogated by Officer Bulo stated that he, the defendant, was "in possession of the car" with his hands on the wheel but that deceased had his foot on the gas pedal. When interrogated defendant was in bed in the hospital; at the time, Officer Peleskey and defendant's father, Homer A. Black, Sr., were in the room and were at times engaged in conversation between themselves. Peleskey testified that he "heard parts of the conversation" between Bulo and defendant.
Although neither the Commonwealth nor the defendant called Homer A. Black, Sr., as a witness, the assistant district attorney commented adversely in his argument to the jury upon the failure of defendant to call his father as a witness. When defendant's counsel objected to the remarks of the assistant district attorney, the trial judge overruled the objection and stated to the jury: "... the Court will charge you in ...