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COMMONWEALTH v. TARABORELLI (12/12/63)

December 12, 1963

COMMONWEALTH
v.
TARABORELLI, APPELLANT.



Appeals, Nos. 239, 240, and 241, Oct. T., 1963, from judgment of Court of Quarter Sessions of Philadelphia County, Oct. T., 1962, Nos. 262, 263, and 264, in case of Commonwealth of Pennsylvania v. Quirino Taraborelli, also known as Wallace Taraborelli. Judgment affirmed.

COUNSEL

Malcolm W. Berkowitz, for appellant.

Paula S. Rand, Assistant District Attorney, with her Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 202 Pa. Super. Page 357]

OPINION BY ERVIN, J.

The appellant, Quirino Taraborelli, also known as Wallace Taraborelli, has appealed from judgment of

[ 202 Pa. Super. Page 358]

    sentence imposed upon him pursuant to a jury verdict finding him guilty of aggravated assault and battery and cutting on Ralph Nicastro, aggravated assault and battery on Joseph Runyon, and assault and battery on Ann Nicastro. He was sentenced to a term of six months to three years in the Philadelphia County Prison on two of the bills of indictment, the second sentence to be concurrent with the first sentence. Sentence was suspended on the simple assault and battery on Ann Nicastro.

The first contention of the appellant is that there was a violation of due process of law for the Commonwealth not to call to the stand an eyewitness whose testimony the Commonwealth knew would contradict the testimony of its prosecuting witnesses. The question was never raised at the trial. At the time of the argument on the appellant's post-trial motions, one Isaac Starr, Jr. was produced by the appellant and he stated that a Rose Sparacino had made a statement to the investigating officers as the time of appellant's arrest contradicting the testimony of the alleged victims. It is stated in the appellee's brief that the defendant's attorney knew of the existence of the witness prior to the trial. It this be true, the defense itself could have called the witness. There is no absolute duty upon the district attorney to call such a witness. In Com. v. Campbell, 196 Pa. Superior Ct. 380, 385, 175 A.2d 324, we said: "Although the Commonwealth must try a case fairly, and the district attorney is not a 'vindictive seeker for vengeance', the calling of witnesses is within the discretion of the district attorney under the general supervision of the trial judge. The Commonwealth is not obliged to call all eyewitnesses in a criminal prosecution, nor a particular eyewitness, where the district attorney has reason to believe that the eyewitness is unreliable. Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872; Commonwealth v. Palermo,

[ 202 Pa. Super. Page 359368]

Pa. 28, 81 A.2d 540; Commonwealth v. Repyneck, 181 Pa. Superior Ct. 630, 124 A.2d 693; Commonwealth v. Lomax, 196 Pa. Superior Ct. 5, 173 A.2d 710." See also Com. v. Deitrick, 221 Pa. 7, 70 A. 275; Com. v. Thurman, 167 Pa. Superior Ct. 642, 76 A.2d 483.

In the case of Com. v. Gockley, 411 Pa. 437, 449, 450, 192 A.2d 693, Chief Justice BELL said: "Furthermore it is not necessary for the Commonwealth under all circumstances to call at the trial all such witnesses: ..." For an excellent article on ...


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