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COMMONWEALTH v. DIPASQUALE (03/21/67)

decided: March 21, 1967.

COMMONWEALTH
v.
DIPASQUALE, APPELLANT



Appeals from judgments of Court of Oyer and Terminer of Philadelphia County, April T., 1964, Nos. 683, 684 and 685, in case of Commonwealth of Pennsylvania v. James DiPasquale.

COUNSEL

G. Fred DiBona and John A. Geisz, for appellant.

Joseph M. Smith, Assistant District Attorney, with him Benjamin H. Levintow and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell dissents.

Author: Eagen

[ 424 Pa. Page 501]

In March 1964, Ludwig Branach was robbed and brutally assaulted in his grocery store in the city of

[ 424 Pa. Page 502]

Philadelphia. He died from the injuries received. John Amato and James DiPasquale were arrested in connection with the crime. On May 12, 1965, DiPasquale was convicted by a jury of: (1) murder in the first degree with punishment fixed at life imprisonment; (2) conspiracy to commit robbery; and, (3) robbery.

After a new trial was denied and sentences imposed, an appeal from the judgment resulting from the murder conviction was filed in this Court. Appeals from the judgments in the conspiracy and robbery convictions were filed in the Superior Court and later certified here.

Billie Pierce, a girl friend of DiPasquale, was interrogated by the police during the investigation of the crime and gave them a recorded statement, wherein she stated, inter alia, that a few days following the occurrence DiPasquale had admitted in her presence that he and Amato had committed the crime involved. Later Miss Pierce was a witness at the hearing before the committing magistrate and testified under oath to substantially the same facts she related to the police. Later she was interviewed by a Mr. Sklar, an assistant district attorney who was preparing the case for trial, and reaffirmed the truth of her statement to the police. Her name was also listed as a witness on the bills of indictment. However, sometime before trial, Miss Pierce notified the district attorney through her attorney, that her statement to the police and her testimony before the committing magistrate concerning DiPasquale's alleged incriminating admissions were not true. As a result she was not called as a witness at trial by the Commonwealth.

After the evidence was closed at trial and both sides had rested, the district attorney then requested that Miss Pierce be called as the court's own witness. The court complied with this request. She was examined about her association with DiPasquale, and in particular

[ 424 Pa. Page 503]

    about anything she heard him say concerning the crime involved. When she failed to disclose and denied that DiPasquale had ever made any incriminating admissions as to the crime in her presence, she was strenuously cross-examined by the Commonwealth as to the contents of her statement to the police, her testimony before the magistrate and her interview with Mr. Sklar. What she said on these occasions was disclosed to the jury and the patent inconsistencies thereof with her trial testimony was forcefully brought out. While she freely admitted telling the police, the magistrate and Mr. Sklar that she had heard DiPasquale make the incriminating statements involved, she ...


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