Appeals, Nos. 5 to 8, inclusive, Feb. T., 1959, from judgments of Court of Oyer and Terminer of Luzerne County, Sept. T., 1957, Nos. 73 to 75A, inclusive, in case of Commonwealth v. Ralph Bonomo. Judgments reversed.
Conrad A. Falvello, with him Rocco C. Falvello, for appellant.
John A. Gallagher, Assistant District Attorney, with him Albert H. Aston, District Attorney, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 187 Pa. Super. Page 523]
The appellant, Ralph Bonomo, was tried and convicted on four indictments. The first, charged that he committed incestuous adultery with Marion Holliday, his niece, on the 30th of December, 1956; the second, that he committed statutory rape on the said Marion Holliday on the same date; the third, that on May 19, 1957, he did tend to corrupt the morals of minors under the age of eighteen years, the minors being Marion Holliday, then age 14, and Donald Meier, then 15 years of age, by having them pose in the nude for a photograph and having them pose for photographs while having intercourse; and the fourth, that on January 2, 1957, he did tend to corrupt the morals of minor children under the age of eighteen years, the minor children being the aforesaid Marion Holliday and Donald Meier, by having them engage in the act of intercourse in his presence. The defendant moved for a new trial and in arrest of judgment, the court en banc below denied the motions and the defendant was sentenced to 2 to 5 years on the rape conviction; other sentences were suspended and defendant ordered to pay the costs. These appeals followed.
[ 187 Pa. Super. Page 524]
At the trial, Bernard J. McCole, the prosecutor, a state policeman, and Wilbur Nauman, Chief of Police of White Haven, were permitted to testify in detail as to statements made by Donald Meier, a Commonwealth witness who was later called and testified on behalf of the Commonwealth. These statements were allegedly made by Meier in the course of the investigation, in a police car outside of White Haven, in the presence of the boy's father but in the absence of the defendant.
The statements were to the effect that the boy, Donald Meier, told the officers he was the boy in the pictures, and Marion Holliday was the girl; that eight pictures were taken, five were of them in the act of intercourse in different poses and three of Marion Holliday in the nude, where, when and by whom the pictures were taken. Donald Meier, when later called as a witness, contradicted these statements in many details.
The testimony, which was clearly hearsay, was permitted allegedly not to establish the truth of the facts contained therein, but merely to show that the statements were made to the officers, and thereby show that the prosecution was brought in good faith, and based upon a thorough investigation. A reading of this record indicates that this was certainly not the result of this testimony. The net result of admitting this testimony was to permit the Commonwealth to impeach their own witness, Donald Meier, for whose credibility they vouched by calling him, and who was not a surprise or hostile witness. They were aware of what his testimony would be far in advance of the trial. Also the court created a new exception to the hearsay rule, in that, it admitted such testimony to fortify a presumption; for it is presumed that a prosecution is brought in good faith.
[ 187 Pa. Super. Page 525]
The hearsay rule and the reasons therefor, together with the well established exceptions thereto, are hornbook law in this Commonwealth, and will not be discussed in detail. The courts, however, in several specific instances have relaxed the rule and allowed exceptions which in every case were supported by the rational justification of a circumstantial probability of trustworthiness and a necessity for the evidence. There existed here no impelling reason to admit the testimony.
The court below relied upon the following line of cases to support the admission of this testimony: Com. v. Storey, 49 Pa. Superior Ct. 282 (1912); Com. v. Ricci, 332 Pa. 540, 3 A.2d 404 (1939); Wagner v. Wagner, 158 Pa. Superior Ct. 93, 43 A.2d 912 (1945); Com. v. Douglass, 185 Pa. Superior Ct. 269, 138 A.2d 193 (1958). We do not believe these cases are in point, although in none of them has the court relaxed the rule to the extent done here. Com. v. Markwich, 178 Pa. Superior Ct. 169, 113 A.2d 323 (1955). Nor in any of these cases does the hearsay testimony admitted into ...