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UNITED STATES EX REL. BERKERY v. RUNDLE

February 25, 1964

UNITED STATES of America ex rel. John BERKERY
v.
Alfred RUNDLE, Warden, Eastern State Correctional Institute, Philadelphia, Pennsylvania



The opinion of the court was delivered by: LORD, III

On October 9, 1959, John Berkery, who is now petitioning for a writ of habeas corpus, was convicted of an attempt to commit burglary, possession of burglary tools, and conspiracy. His case was tried in the Court of Quarter Sessions of Philadelphia County by the Hon. William I. Troutman, sitting without a jury. Following his conviction, relator successively filed (1) a motion for a new trial with the trial court, which was denied; (2) an appeal to the Superior Court of Pennsylvania, which affirmed the judgment of sentence ( Commonwealth v. Berkery, 200 Pa.Super. 626, 190 A.2d 572); (3) a petition for allocatur in the Supreme Court of Pennsylvania, which was denied without opinion; and (4) a petition for certiorari in the Supreme Court of the United States, which was denied (84 S. Ct. 484). I have before me (1) the record filed in the Superior Court of Pennsylvania, which includes the transcript of the trial; (2) the briefs in the Superior Court; (3) the petition for allocatur; and (4) the relator's brief in support of the petition for certiorari. From all of these, the following appears:

In the course of Berkery's trial, a Commonwealth witness, on re-direct examination, was asked in whose car the witness was driven home on the night of the burglary. Her answer was apparently at variance with what she had allegedly said in a previous signed statement given to the Commonwealth. Thereupon, the following colloquy occurred:

 'MR. HARRIS: If the Court, please, I am going to plead surprise and ask leave to cross-examine the witness, because in a statement given to me in person, and in a statement given here, she led me to believe, according to the statement, that they drove home in John Berkery's car. And I would like to show her this statement and cross-examine her on the plea of surprise.

 'I would like not to divulge the contents of the entire statement. I think the only question I would like to examine on is the question of whether or not they drove home in her car or John Berkery's car. I have the very paragraph marked off here. It's one simple sentence. I would rather not divulge the particular contents, Your Honor, unless counsel wants to open his file to me. But that doesn't seem to be a two-way street.

 'MR. DONOLOW: This is most unusual. Here is the district attorney pleading surprise on a statement --

 'MR. HARRIS: Only as to one purpose.

 'MR. DONOLOW: If you open it to one, you open it all up.

 'MR. HARRIS: I have heard that, but I don't believe it.

 'MR. HARRIS: I don't agree with you at all. The purpose of this is not for any substantive evidence. It only goes to her credibility. And, therefore, if she testified on another occasion different from what she is swearing to now, I am permitted to impeach the witness on that ground only -- not as to everything she ever said in her life. And that is the only ground, whether they drove home in her car or John Berkery's car.

 'THE COURT: Note your objection.

 'MR. DONOLOW: I don't object to that. He is objecting to my reading the statement. If he wants to impeach her, his own witness, it's all right with me.

 'MR. HARRIS: Well --

 'THE COURT: Well, of course, we have to find out something about when she made this other statement.

 'MR. DONOLOW: That's right. Mr. Harris is objecting to my reading this statement that she signed, and I feel I have a ...


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