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COMMONWEALTH v. BRUCE (01/15/69)

decided: January 15, 1969.

COMMONWEALTH
v.
BRUCE, APPELLANT



Appeal from order of Superior Court, Oct. T., 1966, Nos. 690 and 691, affirming judgment of Court of Quarter Sessions of Philadelphia County, Nos. 2443 and 2445, 1966 Term, in case of Commonwealth v. Harry L. Bruce.

COUNSEL

John W. Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

Michael Baylson, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Bell

[ 433 Pa. Page 69]

Harry L. Bruce was charged with assault and battery, aggravated assault and battery, aggravated robbery, indecent assault, assault and battery with intent to ravish, and burglary. On May 25-26, 1966, he was tried before a Judge and jury. The jury returned guilty verdicts on all charges except the charge of indecent assault.

Defendant's post-trial motions for a new trial and for an arrest of judgment were denied. Thereafter, judgment of sentence was entered and defendant appealed to the Superior Court. The Superior Court affirmed per curiam. Defendant filed a petition in this Court for the allowance of an appeal. We granted the petition.

Defendant was accused of breaking into the apartment of Mr. and Mrs. Coscarello and assaulting Mrs. Coscarello and robbing her. She testified that she was alone and sleeping in her apartment and that she was

[ 433 Pa. Page 70]

    awakened by noises. She discovered a man standing over her and he stated, "This is a hold-up." She screamed, and he began to beat her viciously on her head with a blunt instrument. He then told her to give him all of her money, and she gave him $10 from her pocketbook. Mrs. Coscarello identified defendant from a series of photographs, and later picked him out of a line-up.

Defendant's defense was that of an alibi. Prior to the trial, he filed a notice under Pennsylvania Rule of Criminal Procedure 312, naming his employer as an alibi witness. At the trial, defendant's employer, called by defendant as his witness, testified that he kept no records of attendance and that he could not be certain whether defendant was working on the job on the day the crime was committed. He further stated that defendant missed several days from work and he could not be certain whether one of those days coincided with the date of the crime.

Defendant then took the witness stand and testified in his own behalf. On cross-examination, he was asked whether his employer had any other employees at the store. Defendant replied, "Yes." The following pertinent questions were asked by the district attorney: "Q. Was that butcher present in the store on a steady basis every single day? A. Yes. Q. Is he in Court today? A. No. Q. If you were working on that Monday [the day of the crime], he would have seen you? A. Yes. Mr. Creskoff: No further questions. Mr. Pepp: The defense rests. Mr. Creskoff: The Commonwealth will offer no rebuttal."

The trial Court charged as follows: "I think something was said about the failure of witnesses to appear. Technically, I must say to you, where there is a situation in a case of an important witness who ...


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