Appeal from the Judgment of Sentence of the Court of Common Pleas of Beaver County, Criminal Division, imposed to Number 336 of 1973. No. 20 April Term, 1975.
Barry P. Tumpson, in pro per.
Joseph S. Walko, Dist. Atty., Joseph M. Stanichak, Asst. Dist. Atty., Beaver, for appellee.
Hoffman, Judge. Spaeth, J., did not participate in the consideration or decision of this case. Jacobs, J., dissents.
The appellant contends that comments made by the district attorney during his closing argument require a reversal of his conviction and a new trial. Specifically, the appellant argues that the district attorney deliberately attempted to exploit the inference that Squire Cronin, if called, would not have corroborated appellant's testimony, when the district attorney knew that the appellant continuously sought but was unable to subpoena Squire Cronin.*fn1
The appellant, an attorney, went to the Monaca Police Station to assist a client (James Underwood) arrested earlier that day. The deputies on duty, however, denied the appellant access to his client. As a result of appellant's continued efforts to see his client, a scuffle broke out between the deputies and appellant. Appellant was arrested and charged with pointing a deadly weapon, aggravated assault and battery on a police officer, and obstructing an officer in the performance of his duties. A jury convicted appellant of simple assault and battery.
At trial, the deputies testified that they did not know that the appellant was Underwood's attorney. To impeach the deputies' testimony, and to otherwise corroborate the appellant's testimony, appellant desired to call Squire Cronin. At a side bar conference during the presentation of the defense, appellant's counsel informed the district attorney and the lower court that Squire Cronin could not be located. He requested a recess so that the defense could continue its attempt to locate and subpoena Squire Cronin. The district attorney then requested an offer of Squire Cronin's expected testimony: "The offer is this, what Dennis Cronin [Squire] will testify is that he received a telephone call that night, that Saturday evening from Barry Tumpson, who was looking for his client Underwood and that shortly after he talked to Barry Tumpson, he received a call from the deputies asking him to come down to an arraignment and that he said to the deputies -- and I think his testimony is that Yaccich [one of the deputies] is the one that called him, 'By the way, Tumpson called here looking for his client.' Basically that's it." The lower court determined that this testimony would affect the credibility of the deputies, an important issue in the case, and granted the recess. The defense was unable to locate Squire Cronin during the recess and the case proceeded without the benefit of his testimony.
During closing arguments, however, the district attorney commented upon Squire Cronin's absence and appellant's counsel objected:
"Mr. Hudacsek [appellant's counsel]: I take very specific expection to the District Attorney's question, 'Where is J. P. Cronin, wasn't he brought here under subpoena?' The District Attorney is well-aware of the efforts I have made to get him here. I made everything a part of this record. I didn't ask for a continuance. We recessed early, at 11:30, in an attempt to get him here and I think in view of his knowledge it is completely prejudicial. I would ask some instruction be given to the jury, not a mistrial.
"Mr. Sadecky [district attorney]: Your Honor, I didn't think the remark was improper or I wouldn't have made it. He had the same opportunity to subpoena witnesses that we did. For some reason this witness wasn't subpoenaed. I don't know why. I can't comment on the fact as to why a witness isn't called or there is evidence that he may shed some light on the Defendant's ...