Appeals, Nos. 76 and 77, April T., 1960, from judgments of Court of Quarter Sessions of Allegheny County, March T., 1959, No. 166, in cases of Commonwealth of Pennsylvania v. Thomas G. Donald, and Same v. Barbara L. Lewis. Judgments reversed.
Herbert Jacobson, for appellants.
William Claney Smith, Assistant District Attorney, with him Edward E. Fagan, Assistant District Attorney, and Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (montgomery, J., absent).
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These two appeals are by defendants, Thomas G. Donald and Barbara L. Lewis, from convictions and sentences on indictments charging each with the crime of adultery committed on various occasions between December 28, 1958, and January 21, 1959. See Act of
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June 24, 1939, P.L. 872, § 505, 18 PS § 4505. Both defendants are married but they were separated from their respective spouses at the time they allegedly committed adultery with each other. The prosecutions were instituted at the instance of Donald's wife and her uncle.
Defendants were tried before a judge of the Court of Quarter Sessions of Allegheny County sitting without a jury. At the conclusion of the Commonwealth's evidence defendants' demurrers were overruled. Both defendants testified in their defense and presented other evidence including that of character witnesses. Defendants' motions in arrest of judgment and for a new trial were refused. Each defendant was adjudged guilty and sentenced to pay the costs and a fine of $100, and placed on probation for one year. On appeal to this Court they contend that the evidence was insufficient to warrant their conviction, and that error in the trial court's remarks necessitates a new trial. Defendants' principal contention is that the evidence of the criminal acts charged, being wholly circumstantial and based entirely on the testimony of paid detectives, is insufficient to sustain their convictions. More specifically, defendants contend that the Commonwealth, in relying upon the so-called "inclination and opportunity rule" to establish the acts of adultery failed to show inclination or an adulterous disposition on the part of those charged with the offense. Viewed in a light most favorable to the Commonwealth, the evidence established that Donald, thirty-five years of age, was employed as an architect in the City of Pittsburgh, and that he had been separated from his wife for a period of one and a half years prior to the charges here made. Defendant Barbara L. Lewis was employed as a secretary by the National Polio Foundation having offices in Pittsburgh, and had been separated from her husband since October, 1958. Donald had known
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Mrs. Lewis for about four years, as they were employed in the same office building; they saw each other frequently between October, 1958, and the raid and arrest at the apartment of Mrs. Lewis at 10:30 p.m. the evening of January 21, 1959. In November, 1958, the services of a private detective were employed to check the activities of Donald based upon a rumor that he was living with a married woman. The surveillance of Donald commenced on December 27, 1958, and ended on January 21, 1959, the night of the arrest. During this period defendants were under surveillance on various occasions. On the evening of January 21, 1959, having a warrant charging defendants with adultery, a private detective, Nicholas Carter, his assistant, Dona Brand, Mrs. Thomas Donald, defendant's wife, Ellsworth Jordan, an uncle of Mrs. Donald, and a constable went to the building where Mrs. Lewis had an apartment. The raiding party gained entrance to the building and asked to be directed to the Lewis apartment. They knocked on the door and were immediately let into the apartment by Mrs. Lewis. Donald was fully clothed with the exception of his coat. Mrs. Lewis was wearing a housecoat or duster, a slip, and a pair of slippers; her hair was in curlers. In the apartment they found a suburban coat, a pair of slacks, and a sport shirt belonging to Donald. A photograph was taken of defendants, which showed no improper dress or conduct. Ellsworth Jordan, uncle of Mrs. Donald, testified that the raiding party waited from 10 p.m. until 10:30 p.m. "to give them [defendants] time to get in bed together." Their expectations were not realized.
The trial court concluded that the charge of adultery was established by the Commonwealth on two different occasions. One was on the night of Monday-Tuesday, December 29 and 30, 1958, and the other on ...