Appeal from order of Court of Common Pleas of Berks County, No. 881 of 1973, in case of Commonwealth of Pennsylvania v. Kenneth Houck.
Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellant.
Peter F. Cianci, and DeLong, Dry, Cianci & Grim, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J.
[ 233 Pa. Super. Page 514]
This is an appeal from an Order of Judge Warren K. Hess, Presiding with a jury, dismissing the case and dividing the costs between the defendant and the party who initiated the complaint, which party was found by Judge Hess to be the "real prosecutor". The Commonwealth, appellant, argues two points:
(1) That the trial judge abused his discretion in dismissing the case pursuant to Section 312 of the Crimes Code;*fn1 and
(2) That the trial judge erred in placing one half the costs on the person he determined to be the "real prosecutor."
Lester Leinbach had been bothered by telephone calls which he claimed came from Kenneth Houck. Leinbach reported these calls to a local police officer who signed a criminal complaint against Houck alleging violation of Section 5504 of the Crimes Code.*fn2
The Grand Jury bound the defendant over for trial which was held on March 13, 1974. The evidence showed that from June 11-14, 1973, four calls were made from the Houck telephone number to the Leinbach telephone number. Houck admitted that he made a call to Leinbach on June 11th and told Leinbach during the conversation that he was "lower than dirt", "morally rotten" and should be thrown out of the church and the Masons.
[ 233 Pa. Super. Page 515]
There was a dispute as to whether Houck cursed at Leinbach and as to whether Houck made the other three calls during which no conversation took place because the caller did not talk. The testimony further developed that Houck and Leinbach had been good friends; that Houck had invited Leinbach to the Houck home frequently both before and after Leinbach's wife had died. Leinbach had taken Mrs. Houck down to Maryland on one of his fishing trips and he had loaned her two thousand, five hundred ($2,500.00) dollars to institute divorce action against Houck who was contesting it.
After the close of the testimony the trial judge found that the defendant had not used "lewd, lascivious or indecent words or language." Further, that if Section 5504 had been violated it was only to an extent too trivial to warrant a conviction and that there were "present such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense."*fn3 At the conclusion of the testimony the trial judge dismissed the ...