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COMMONWEALTH v. FISHER. (03/18/59)

March 18, 1959

COMMONWEALTH, APPELLANT,
v.
FISHER.



Appeal, No. 59, Oct. T., 1959, from order of Court of Quarter Sessions of Berks County, June T., 1958, No. 83, in case of Commonwealth of Pennsylvania v. William H. Fisher. Order affirmed.

COUNSEL

Frederick O. Brubaker, District Attorney, with him Peter F. Cianci, Assistant District Attorney, for appellant.

C. Wilson Austin, with him Samuel R. Liever, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Wright

[ 189 Pa. Super. Page 9]

OPINION BY WRIGHT, J.

On May 27, 1958 William H. Fisher was indicted on a charge of abortion, the alleged victim being one Barbara Ann Snyder. At the trial before the Court of Quarter Sessions of Berks County commencing September 15, 1958, Barbara Ann Snyder was called as a witness for the Commonwealth. Claiming the privilege against self-incrimination, she refused to testify. Thereupon, September 16, 1958, she was held in contempt and committed to prison. Dolores Jean Snyder, sister of Barbara Ann, was also called as a Commonwealth witness with the same result. The trial was then recessed until September 17, 1958. Barbara Ann and Dolores Jean immediately appealed to this court, and we directed that the appeals act as a supersedeas. On September 17, 1958, over the objection of Fisher's counsel, the trial was recessed until September 18, 1958. On that date the district attorney presented a certified copy of our order granting supersedeas, and

[ 189 Pa. Super. Page 10]

    moved that a juror be withdrawn and the case continued. Again over the objection of Fisher's counsel, the trial was recessed until September 22, 1958. On that date, the motion of the district attorney was overruled. The Commonwealth then rested. Counsel for Fisher promptly filed a demurrer to the evidence. The trial judge thereupon entered an order sustaining the demurrer and directing that Fisher be discharged. The Commonwealth has appealed.

Appellant raises only one question on this appeal, as follows: "Did the lower court act properly when it proceeded with the trial after all records in the case were certioraried to the Superior Court in connection with the appeals of the two chief Commonwealth witnesses from summary contempt convictions arising out of their refusal to testify?"

Appellee contends that, since this question was not raised in the court below, appellant may not advance it here. The rule that questions not raised in the court below will not be reviewed on appeal has been repeatedly stated: Commonwealth ex rel. DeSimone v. Maroney, 179 Pa. Superior Ct. 300, 116 A.2d 747; Commonwealth v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530. However, this rule has been relaxed under special circumstances: Commonwealth v. Savor, 180 Pa. Superior Ct. 469, 119 A.2d 849. The basic question presented by this appeal does not warrant summary dismissal. Cf. Commonwealth v. Helwig, 184 Pa. Superior Ct. 370, 134 A.2d 694.

Appellant relies principally on Harwood v. Bruhn, 313 Pa. 337, 170 A. 144, wherein it was held that a court of first instance is without jurisdiction to proceed with a cause after the record thereof has been removed to an appellate court. See also Gilbert v. Lebanon Valley Street Ry. Co., 303 Pa. ...


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