Appeal, No. 82, March T., 1962, from judgment of Court of Quarter Sessions of York County, Oct. T., 1960, No. 7, in case of Commonwealth of Pennsylvania v. Russell Frank Gurreri. Judgment of sentence affirmed.
Nevin Stetler, with him Leo E. Gribbin, Jr., for appellant.
Donn I. Cohen, Assistant District Attorney, with him Frank B. Boyle, District Attorney, for Commonwealth, appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 331]
The defendant, Russell Frank Gurreri, appeals from the sentence which was imposed upon him by the court below after his conviction by a jury on the charge of bookmaking and after the court below refused his motions for a new trial and in arrest of judgment.
On September 20, 1060 the Pennsylvania State Police raided a house in York County, Pennsylvania, and found therein Roger Markle and Russell Frank Gurreri. Markle was seated at a card table with a telephone, surrounded by bookmaking paraphernalia. Gurreri was nearby on a sofa. Shortly after the arrival of the police phone calls were received by the State Police in which the callers sought to place bets or obtain racing information from Gurreri. Markle admitted his guilt and entered a plea of guilty to an indictment charging him with bookmaking. Gurreri plead not guilty and was tried by a jury. At the trial Markle was called as a witness by the Commonwealth and
[ 197 Pa. Super. Page 332]
asked in direct examination whether he was conducting a bookmaking business at the raided premises. He admitted that he was. He was then turned over to the defendant for cross-examination and he then testified that he was not associated with Gurreri in the bookmaking business. The Commonwealth then asked permission to examine Markle in regard to certain of the records which had been found in his possession and which indicated that Gurreri was guilty of bookmaking at the time of the raid.
The principal contention of the appellant Gurreri is that the Commonwealth should not have been permitted to impeach the testimony of Markle without first pleading surprise. In Com. v. Deitrick, 221 Pa. 7, 15, 16, 70 A. 275, our Supreme Court said: "However much it was insisted upon formerly that a party could not be allowed to impeach by contradiction witnesses called by himself, the rule which prevented it has not only been much relaxed, but, as Mr. Wigmore in his treatise on evidence shows, has been in most jurisdictions wholly abrogated. In England, where it had its origin, some features of it, preserved by statute, yet remain, but the very marked tendency in this country is to escape from it entirely. Our own state furnishes no exception. In Gantt v. Cox & Sons Co., 199 Pa. 208, speaking by the present chief justice, we said: 'The rule that a party calling a witness is not permitted to ask leading questions and is bound by his testimony, is liberally construed in modern practice, with a large measure of discretion in the court to permit parties to elicit any material truth without regard to the technical consideration of who called the witness. It is a discretion not susceptible of exactly defined limits before hand, but to be exercised in the interests of justice and a fair trial under circumstances as they arise.'" See also Com. v. Joseph, 182 Pa. Superior Ct. 617, 623, 624, 128 A.2d 121; Morris v. Guffey & Queen,
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Pa. 534, 41 A. 731. This is particularly true where the witness is an associate of the defendant and naturally reluctant to testify against him: Com. v. Bruno, 316 Pa. 394, 403, 175 A. 518. It is entirely probable that Markle was "taking the rap" for his associate ...