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COMMONWEALTH v. DICIO (03/23/71)

decided: March 23, 1971.

COMMONWEALTH
v.
DICIO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Washington County, May T., 1967, No. 207, in case of Commonwealth of Pennsylvania v. Joseph DiCio.

COUNSEL

Robert L. Zeman, with him Adolph L. Zeman, and Zeman & Zeman, for appellant.

Jack H. France, Assistant District Attorney, with him Jess D. Costa, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 218 Pa. Super. Page 269]

Appellant was indicted for and convicted of fraudulent conversion. The charge arose out of the following factual situation: A friend of appellant died possessing an automobile. The administrator of the friend's estate

[ 218 Pa. Super. Page 270]

    asked appellant, a used car dealer, to sell the car. Eventually, appellant was given possession of the car and in fact sold it. Apparently relying on a belief that the decedent owed him a substantial sum of money, appellant retained the proceeds from the sale and did not turn them over to the estate.

Appellant attempted to testify that he had agreed to buy a parcel of land from decedent and had paid him $1,700 for that purpose. He indicated that decedent had not been able to deliver good title, and thus appellant felt he was owed that amount. The Commonwealth successfully objected to testimony concerning the sale of land on the basis that it was violative of the "dead man's rule".*fn1

The jury found appellant guilty of fraudulent conversion. From judgment of sentence, this appeal followed.

At trial the Commonwealth argued that the deadman's rule barred appellant from testifying concerning a sale of land by decedent. However, by its own terms the statute clearly does not apply to the instant case. "For a person to be rendered an incompetent witness by the rule pertaining to deceased parties, he must have an interest adverse to that of the decedent. As stated in Hendrickson Estate, 388 Pa. 39, [45,] 130 A.2d 143, 146 (1957): 'Under this exception three conditions must

[ 218 Pa. Super. Page 271]

    exist before any such witness is disqualified: (1) the deceased must have had an actual right or interest in the matter at issue, i.e., an interest in the immediate result of the suit; (2) the interest of the witness -- not simply the testimony -- must be adverse; (3) a right of the deceased must have passed to a party of record who represents the deceased's interest.'" Pavlinko Estate, 399 Pa. 536, 544, 160 A.2d 554, 558 (1960). Clearly the ...


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