Appeals, Nos. 108 and 109, Oct. T., 1959, from judgment of Court of Quarter Sessions of the Peace of Delaware County, Dec. T., 1957, Nos. 468 and 469, in case of Commonwealth of Pennsylvania v. Wasyl Towber. Judgment reversed.
Stephen J. McEwen, Jr., with him Stephen J. McEwen, for appellant.
Ernest L. Green, Jr., Assistant District Attorney, with him J. Harold Hughes, First Assistant District Attorney, and Raymond R. Start, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
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The defendant was indicted on charges of burglary, robbery and other related offenses arising from the
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same set of circumstances. Leonard J. Fitzgerald, a co-defendant pleaded guilty to all of the charges. Towber whose defense was an alibi, was found guilty as indicted and was sentenced.
Shortly after two o'clock in the early morning of October 26, 1957, two masked men, one of them with a sawed-off shotgun, entered the Birmingham Grille, a diner at Painter's Crossroads in Delaware County. The gun was discharged into the roof of the structure and eight or ten customers together with the employes who were on duty were herded into a corner of the diner. The men in the group were made to surrender their wallets, and the women, their handbags. The cash register was rifled. The two holdup men made their escape in a 1957 Chevrolet which had been stolen some hours before from a parking lot near a steel mill in Coatesville. A witness, who had driven up to the diner while the holdup was in progress, realized what was going on and was instrumental in notifying the police. Police officers observed the get-away car as it was driven through West Chester and followed it. They were eluded however and never caught up with the car which was later abandoned at the side of a country road, several miles from Coatesville. It was suspected that Fitzgerald had a part in the crimes and he was arrested in Coatesville about 4:30 of the same morning. At the State Police barracks immediately following his arrest, Fitzgerald admitted his part in the crime as the accomplice of appellant Wasyl Towber. He said that it was Towber who suggested that they "pull a job", when he met him by chance early in the evening before, in Coatesville where they both lived; that Towber then had the shotgun under his coat and he also had a rubber mask; that after stealing the Chevrolet car they proceeded to the diner, with Towber driving and arrived there about 2 a.m.; that Towber purposely discharged
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the gun and it was he who robbed the people who were in the diner, while Fitzgerald, at Towber's direction, rifled the cash register; that they divided the stolen money between them in a vacant building known as Old Mansion and there abandoned the stolen car; that they separated as they were walking along toward Coatesville.
Because both of the men were masked, the victims who appeared as witnesses, were unable to identify the robbers but their testimony as to general physical characteristics fitted both defendants. Towber was arrested later in the same morning and was taken to the police barracks. There, according to the testimony, Fitzgerald's confession was read in the presence of both Fitzgerald and Towber; all three of the State Police officers who also were present at the reading of the confession testified that Towber did not deny the implication of guilt but stood mute and refused to say anything. Towber at the trial denied that he refused comment when Fitzgerald's confession, charging him as an accomplice, was read in his presence. He testified: "I asked to plead the 5th Amendment to the Constitution because I didn't know what everything was about, I didn't know what to say." The officers' testimony was that the claim of immunity under "the 5th amendment" did not come until at least two hours later. The trial court submitted the testimony of Towber's standing mute and refusing to answer as evidence of his guilt, under Com. v. Vallone, 347 Pa. 419, 32 A.2d 889. However since Towber testified that he claimed immunity ...