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COMMONWEALTH v. BONOMO. (05/28/59)

May 28, 1959

COMMONWEALTH, APPELLANT,
v.
BONOMO.



Appeals, Nos. 114, 115, 116 and 117, Jan. T., 1959, from order of Superior Court, Feb. T., 1959, Nos. 5, 6, 7 and 8, reversing order of Court of Oyer and Terminer of Luzerne County, Sept. T., 1957, Nos. 73, 74, 75 and 75A, in case of Commonwealth v. Ralph Bonomo. Order affirmed. Same case in Superior Court: 187 Pa. Super.Ct. 521. Indictment charging defendant with incestuous adultery, statutory rape, and contributing to the delinquency of minors. Before PINOLA, J. Verdict of guilty and judgment of sentence thereon. Defendant appealed to Superior Court which reversed judgment. Appeal by Commonwealth to Supreme Court allowed.

COUNSEL

Arthur Silverblatt, Assistant District Attorney, with him Albert H. Aston, District Attorney, for appellant.

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

Author: Mcbride

[ 396 Pa. Page 224]

OPINION BY MR. JUSTICE MCBRIDE

The Commonwealth charged that the defendant had carnal knowledge of his niece (Marion Holliday), aged 14, on the 30th of December, 1956, thus resulting in an indictment for incestuous adultery and a separate indictment for statutory rape. A third indictment charged that on May 19, 1957, he contributed to the delinquency of Marion, and a fourth charged the same offense in respect of a young lad, Donald Meier, aged 15. The sufficiency of the evidence has not been attacked and it is unnecessary that we set it forth at length. It is stated in the opinion of the Superior Court, which is reported at 187 Pa. Superior Ct. 521. All charges were tried together resulting in a verdict of guilty. Motions for new trial and in arrest of judgment were overruled and the defendant was sentenced on the indictment for rape to imprisonment for not less than two nor more than five years. Sentences on the other indictments were suspended and the defendant was ordered to pay costs. Upon appeal to the Superior Court all judgments of conviction were reversed. We

[ 396 Pa. Page 225]

    allowed an appeal because of the importance to the administration of criminal justice of one of the questions involved. However, even though this is an appeal from the Superior Court, the whole proceeding is brought before us and we must consider it. Act of June 24, 1895, P.L. 212, § 9, par. 4, 17 P.S. § 195.

At the trial police officers were permitted, over objection, to testify in detail as to statements made to them by Donald Meier (in the absence of the defendant) during the course of their investigation. These statements were incriminatory of the defendant and their admission constituted prejudicial hearsay unless they were admitted for some legitimate purpose. The trial court, while carefully ruling that the statements were not admitted to show their truth, nevertheless held them to be admissible on the ground stated by the prosecuting attorney, that they were "facts elucidated in the course of an investigation by the state police".

It is true that this testimony related only to the two charges of corrupting morals of the minor children and had nothing to do directly with the charges of statutory rape and incestuous adultery. The trial court, in its disposition of the motion for new trial, held that the testimony was not hearsay because it was not offered for the purpose of proving the truth of the statements but "merely to outline to the jury the investigation made by the officer which culminated in the arrest of the defendant". For support the Court quotes from our decision in Commonwealth v. Ricci, 332 Pa. 540, 3 A.2d 404, in which we said "Whenever the fact that the utterance was made is in issue rather than the truth of what was said, the utterance is not hearsay".

We reiterate that statement; but the difficulty with it in the present context is that the investigation was not "in issue". The trial court also supported the admission of such testimony "because it showed that the

[ 396 Pa. Page 226]

    officer acted in good faith and with reasonable cause". The good faith or the reasonableness of the prosecution was not in issue either. The policemen were not on trial for their actions and they were not being sued for slander. Hence the fact that the statements were made out of court and out of the presence of the defendant were incompetent and, as the trial court correctly stated, they were inadmissible hearsay to prove the truth of the facts stated. The error was compounded in the charge of the court in which the out-of-court statements of Donald Meier were referred to as "facts", were repeated in detail, and the jury was informed that they were received "in evidence to show that statements were ...


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