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COMMONWEALTH v. HORN (03/16/59)

March 16, 1959

COMMONWEALTH
v.
HORN, APPELLANT.



Appeal, No. 376, Jan. T., 1958, from judgment of Superior Court, Oct. T., 1958, No. 82, affirming judgment of Court of Quarter Sessions of Philadelphia County, Feb. T., 1957, No. 846, in case of Commonwealth of Pennsylvania v. Robert Horn. Judgment affirmed.

COUNSEL

Louis Lipschitz, for appellant.

Domenick Vitullo, Assistant District Attorney, with him Juanita Kidd Stout, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Bell

[ 395 Pa. Page 586]

OPINION BY MR. JUSTICE BELL

Defendant was found guilty by a trial Judge, sitting without a jury, of operating a motor vehicle while under the influence of intoxicating liquor. The Judgment

[ 395 Pa. Page 587]

    and Sentence of the Court of Quarter Sessions was affirmed by a unanimous Superior Court, and this Court allowed an allocatur.

On January 22, 1957, at approximately 1:00 a.m., John McKnight was driving his automobile accompanied by his wife and three children, south on A Street in Philadelphia. A Street is a one-way street south. Defendant was driving his automobile west on Clearfield Street - the wrong way on a one-way street. When McKnight's automobile was half-way across the intersection of A Street and Clearfield Street, it was struck on the left rear side by the front of an automobile driven by defendant. Defendant knocked McKnight's automobile completely around and his three children were thrown into the street; his car ended up on the west side of the pavement about 25 yards down A Street.

Officer Kinsella arrived at the scene of the accident very shortly after it occurred. After McKnight and his wife and their children, who were bleeding very badly, were placed in a patrol car to be taken to the hospital, the officer asked defendant where he thought he was going. Defendant did not answer the question. Officer Kinsella testified that defendant had the odor of alcohol on his breath, "that his face was kind of bloated, like, and his eyes looked kind of funny".

Officer Hinchcliffe arrived at the scene of the accident about 1:30 to investigate the accident. He interrogated defendant at 2:15 a.m. when defendant was in the cell block of the 30th District Station. Hinchcliffe testified that defendant "had an odor of alcohol on his person, his face was flushed, his eyes blood-shot and his speech was thick, and he was under the influence of intoxicating liquor". He further testified that defendant told him that he knew he was on a one-way street, but did not know he was going the wrong way

[ 395 Pa. Page 588]

    because he was not familiar with the neighborhood, although he said he traveled this route home every night on his way back to his home at Levittown; that he was going about 15 to 18 miles an hour, and that he saw McKnight's car when he was about 30 feet from the intersection of A Street, and put on his brakes but could not stop. Defendant also said that it was a misty, foggy night. Notwithstanding this fact, the weather report showed that visibility was good for an entire city block.

Defendant took the witness stand and told what the trial Judge described as a "cock-and-bull story", a story that "reflected not only a lack of candor but almost improvisation as the case went along ... in weighing the testimony of the witnesses the Court's observation of defendant's demeanor led it to reject his testimony as unworthy of belief." A reading of the record amply supports the trial Judge's finding that defendant's testimony was unworthy of belief.

Defendant seeks a new trial for two main reasons: (1) the testimony of the police surgeon which was favorable to him, and (2) the statements of the trial Judge which he contends were so prejudicial as to deny him a fair trial.

When the Commonwealth concluded its case, the District Attorney announced there were two other witnesses named on the bill of indictment - John McKnight, an ill child aged 6, and Dr. Squillace, the police and fire surgeon, who examined defendant at about 2:30 or 2:35 a.m. The District Attorney then stated that the Commonwealth "does not choose to call Dr. Squillace but he is available to either the Court or the defendant". Defendant then requested the Court to direct the District Attorney to call Dr. Squillace and the Court directed the Commonwealth to call him. Assuming, arguendo, that this was error, the error was

[ 395 Pa. Page 589]

    prejudicial to the Commonwealth, not to the defendant.

There is no duty on the Commonwealth to call witnesses whose names appear on a bill of indictment or even eye witnesses, if it believes after examination or investigation that their testimony is unreliable, or unworthy of belief, or surplusage or irrelevant. The law in such a case merely requires a District Attorney to notify the Court and defense counsel that he does not intend to call certain persons whose names appear on the bill of indictment as Commonwealth witnesses: Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540; Commonwealth v. Deitrick, 221 Pa. 7, 14, 15, 70 A. 275. See also: Commonwealth v. Danz, 211 Pa. 507, 522, 60 A. 1070; Commonwealth v. Giacobbe, 341 Pa. 187, 195, 19 A.2d 71.

In Commonwealth v. Palermo, 368 Pa., supra, the Court sustained the refusal of the District Attorney "to ... call the only eye witness to the shooting". The Court said (pages 32-33): "It is a settled principle of law that the Commonwealth must try a case fairly and that the district attorney is not a 'vindictive seeker for vengeance.' Commonwealth v. Karamarkovic, 218 Pa. 405, 408, 67 A. 650 (1907). However, it is equally well established that the district attorney is not obliged to call all of the eye witnesses, 'nor a particular eye witness where he has reason to believe that the witness is unreliable.' Commonwealth v. Thurman, 167 Pa. Superior Ct. 642, 647, 76 A.2d 483 (1950). The calling of witnesses is within the discretion of the district attorney under the general ...


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