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COMMONWEALTH v. SCHWARTZ ET AL. (11/14/68)

decided: November 14, 1968.

COMMONWEALTH
v.
SCHWARTZ ET AL., APPELLANTS



Appeal from order of Superior Court, Oct. T., 1967, Nos. 227 to 241, inclusive, affirming judgments of Court of Quarter Sessions of Philadelphia County, Jan. T., 1966, Nos. 880 to 885, 891 to 893, 896 to 898, 900 and 905, in case of Commonwealth v. Harry C. Schwartz et al.

COUNSEL

Marvin Comisky, with him Edwin P. Rome, Goncer M. Krestal, and Blank, Rudenko, Klaus & Rome, for appellants.

Richard A. Sprague, First Assistant District Attorney, with him John A. McMenamin and Alan J. Davis, Assistant District Attorneys, and Arlen Specter, District Attorney, for commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Justice Musmanno did not participate in the decision of this case. Dissenting Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.

Author: Per Curiam

[ 432 Pa. Page 523]

The court being equally divided, the order of the Superior Court is affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Mr. Justice Cohen:

I conclude that the Attorney General improperly superseded the District Attorney.

I dissent.

Dissenting Opinion by Mr. Justice Roberts:

The majority, in failing to grant appellant Siegel a new trial, ignores two recent Supreme Court decisions. During the course of the trial the Commonwealth introduced Magistrate Schwartz's unsworn statement which inculpated Constable Siegel. It is conceded that cautionary instructions were given to the jury warning them to disregard Schwartz's statement in evaluating the Commonwealth's case against Siegel. Further, under the rule originally established in Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294 (1957), it was assumed that a properly instructed jury would ignore the confessor's inculpation of the nonconfessor in determining the latter's guilt. It followed from this assumption, ...


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