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COMMONWEALTH v. ZUBIK ET AL. (12/14/60)

December 14, 1960

COMMONWEALTH
v.
ZUBIK ET AL., APPELLANTS.



Appeals, Nos. 232 and 233, April T., 1960, from judgments of Court of Quarter Sessions of Allegheny County, Sept. T., 1959, No. 335, in case of Commonwealth of Pennsylvania v. Charles Zubik et al. Judgments of sentence affirmed; reargument refused January 13, 1961.

COUNSEL

T. Robert Brennan, with him Brennan and Brennan, for appellants.

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Montgomery

[ 194 Pa. Super. Page 250]

OPINION BY MONTGOMERY, J.

These appeals are from judgments of sentence imposed after verdicts of guilty were returned by a jury on an indictment charging appellants with simple assault and battery upon William Nogach. The case was tried as a cross-action with two cases against Nogach, one charging him with simple assault and battery upon appellant, Virginia Drambel, and the other with aggravated assault and battery upon the other appellant, Charles Zubik. Verdicts of not guilty were returned in the cases against Nogach.

All of the cases resulted from two incidents which occurred on May 25, 1959, when Nogach, a photographer for Television Station KDKA, attempted to photograph the serving of eviction notices upon Zubik by the Police of the City of Pittsburgh. It appears reasonably clear that the incidents occurred on property of Zubik. The first incident is described by Zubik as an unprovoked assault upon him by Nogach, merely because he told Nogach, "Mr. Nogach, I don't want [you] to take any pictures here, that's my property, and I want you not to take any pictures, I want you to leave." The police had not arrived when this is alleged to have occurred. Nogach denied striking Zubik and testified that he was complying with the request to leave and was walking off the property in company with Zubik when the police arrived.

Zubik did not describe the second incident, which occurred about two minutes after the first, but he contended that he was "all in, sick." It was described by appellant Drambel as follows: "Q. Tell us when that occurred? A. Well, whenever the four men came, my dad was up against the car, there, we walked over toward them, we thought they were the ones they sent down, and here, they said, 'Mr. Zubik, we have eviction notices for you.' So, they handed my dad the eviction notices, and Mr. Nogach started to take pictures, and

[ 194 Pa. Super. Page 251]

I told him we didn't want pictures, and I reached up, I told the policeman we wanted the film, and we didn't want pictures on our own property there. So, he must have got scared, I guess he thought I was going to hurt him or something, I mean, so he went and pushed me up against the car and bruised my hand, and then my dad came over to help me and that was the end of that."

Appellants submitted certain points upon which they requested the Court, Hon. J. FRANK GRAFF, specially presiding, to charge the jury. These points were all affirmed but with some qualifying statements. It is only these qualifying statements, which are alleged to be prejudicial and fundamental errors, that are the basis of these appeals. No specific exceptions were taken to the affirmance of the points as qualified.

Appellants argue that they were entitled to have the jury determine whether their actions were not privileged since they were merely evicting a trespasser from their property after he had refused to leave on notice, and that the qualification placed upon the ...


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