Appeals, Nos. 260 to 263, inclusive, April T., 1962, from order of Court of Quarter Sessions of Armstrong County, Dec. T., 1961, Nos. 85 to 88, inclusive, in case of Commonwealth of Pennsylvania v. Louis J. Poundstone et al. Orders affirmed.
Philip P. Kalodner, Deputy Attorney General, with him Harry A. Heilman, Jr., District Attorney, and David Stahl, Attorney General, for Commonwealth, appellant.
Thomas R. Eddy, for appellees.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 200 Pa. Super. Page 418]
The Commonwealth has appealed from the orders sustaining the demurrers made by the defendants who were tried on the charges of bribery and conspiracy.
In the course of the trial, the Commonwealth offered certain evidence which the court refused to admit. At the conclusion of the Commonwealth's evidence, a demurrer was interposed in each case. The court sustained the demurrers, and subsequently refused to remove them.*fn1
Without the evidence which the Commonwealth offered and which the court refused to admit, there is insufficient evidence to support a conviction of any of the defendants on any of the charges. The Commonwealth admits this, but appeals on the ground that the trial judge erred in its rulings on the evidence, and that there would have been sufficient evidence to submit the case to the jury had not the court erred in its rulings on the evidence.
It is settled that on an appeal by the Commonwealth from an order sustaining a demurrer to the Commonwealth's evidence, our review is limited to an examination of the record to determine whether there was sufficient evidence to convict.
[ 200 Pa. Super. Page 419]
The identical question here presented was carefully examined in Commonwealth v. Frank, 159 Pa. Superior Ct. 271, 48 A.2d 10 (1946), where on pages 277, 278, Judge BALDRIGE, speaking for a unanimous court, said: "The commonwealth may appeal also where the judge has sustained defendant's demurrer, which raised the pure legal question of the sufficiency of the proof to support the crime charged: Commonwealth v. Kolsky, 100 Pa. Superior Ct. 596, 599; Commonwealth v. Shiroff, 131 Pa. Superior Ct. 565, 200 A. 204: Commonwealth v. Obenreder, supra, p. 255. The difficulty that confronts the commonwealth is that concededly a case was not made out on the testimony actually received. Viewing it only, the trial judge had no alternative than to sustain the demurrer. Should the testimony offered by the commonwealth at side bar, and rejected by the trial judge, have been considered? Our answer to that question is in the negative. The proper test to apply to the validity of a demurrer is whether the 'evidence of record' (Commonwealth v. Ernesto, 93 Pa. Superior Ct. 339, 341, 342), the 'admitted state of facts' (Commonwealth v. Kerr, supra, p. 601), the 'evidence produced' (Commonwealth v. Williams, 71 Pa. Superior Ct. 311; Commonwealth v. Kolsky, supra, p. 599), and 'all the facts testified to and the inferences reasonably drawn therefrom' (Sadler, Criminal Procedure in Pennsylvania, Vol. II, § 541, pp. 611, 612), would support a verdict of guilty. See, also, Chitty on Criminal Law (5th American Ed., 1847), Vol. I, p. 623. Even assuming the commonwealth's contention is correct, 'the error, if any, was in the exclusion of evidence on the trial.' Commonwealth v. Obenreder, supra, p. 256."
In Commonwealth v. Thomas, 166 Pa. Superior Ct. 214, 219, 70 A.2d 458 (1950), this Court said: "An objection to this offer of testimony was sustained by the trial judge, and his ruling is assigned as error. ...