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COMMONWEALTH v. BERKERY (04/18/63)

April 18, 1963

COMMONWEALTH
v.
BERKERY, APPELLANT.



Appeal, No. 444, Oct. T., 1962, from judgments of Court of Quarter Sessions of Philadelphia County, June T., 1959, Nos. 1608, 1609, and 1610, in case of Commonwealth of Pennsylvania v. John Berkery. Judgments of sentence affirmed; reargument refused May 15, 1963.

COUNSEL

Benjamin R. Donolow, with him Paul D. Sulman, for appellant.

William D. Harris, Assistant District Attorney, with him John, F. Hassett and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

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

Author: Woodside

[ 200 Pa. Super. Page 628]

OPINION BY WOODSIDE, J.

The appellant in this case was tried by a judge without a jury and found guilty of an attempt to commit burglary, possession of burglary tools, and conspiracy. The evidence of his guilt was overwhelming.

He seeks a new trial on the ground, among others, that "the trial judge sitting without a jury may well have been influenced by the fact that during the course of the trial, he became aware fo the identity of the Defendant who had become the subject of great notoriety and publicity close to the time of the trial." During the examination of a Commonwealth's witness whose car was used by the defendant on the night of his arrest, the district attorney pleaded surprise and sought to cross-examine his witness concerning the car used to bring

[ 200 Pa. Super. Page 629]

    her home that night. In the cross-examination, the district attorney wished to use a written statement made to him by the witness, but tried to limit the use to the single question concerning the automobile. The defendant's counsel objected, and thereafter the district attorney, the court and the defense counsel became involved in a prolonged colloquy. Finally, the court asked, "May I look at that statement?" Without objection the statement was handed to him. It contained some matters not relevant to the case - particularly about the co-defendant who was then deceased. The court, thereafter, indicated that he recognized the defendant as the person whose name had been linked with another pending criminal case receiving wide publicity.

The trial judge was the Honorable WILLIAM I. TROUTMAN of Northumberland County, specially presiding in Philadelphia. He is a judge of long experience and with an outstanding reputation for ability and integrity. If his acquired knowledge of the defendant's identity had the slightest influence upon his decision, he undoubtedly would have granted the defendant a new trial when the opportunity was presented to him.

When a judge is hearing a case without a jury, he should try to avoid receiving knowledge concerning the case and the parties which would be denied to a jury, but this is not always possible. In order to rule on the admission of evidence, a trial judge must sometimes obtain information he would not submit to a jury, and this is true when he is trying a case without a jury as well as when he is trying a case with a jury. Judges are human, but they are also specially trained to decide cases on the evidence. They are conscious of the dangers of irrelevant facts and zealously guard themselves against ...


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