Commonwealth v. Vallone , 151 Pa. Super. 431 ( 1942 )

I find no reversible error in this record; therefore I dissent from the conclusion of the majority.

The elements enumerated in the majority opinion as taking this case out of the general rule find no support in the decisions of our Supreme Court or of this court. Some of those elements have been considered in other jurisdictions, but, while in some jurisdictions silence of the accused has been held to be inadmissible as proof of his acquiescence or consent to the statements made in his presence where one or more of such elements exist, those decisions are not controlling in view of the definite statement of our Supreme Court as late as Com. v.Turza, 340 Pa. 128, 135, 16 A.2d 401. Limitations of the general rule have been recognized in this state where the incriminating statments were made in the course of a judicial proceeding (Com.v. Zorambo, 205 Pa. 109, 54 A. 716), and where there has existed no motive or opportunity to deny. The fact that the accused was in custody or under arrest has never been accorded any significance in this state, although it may have been given great weight in some other jurisdictions. The majority opinion overrules most of the cases in this state on the subject. If the purpose is to establish a new rule, such rule should be set forth with some degree of certainty. For example, the majority opinion is in direct conflict with most everything that was said by this court in Com. v. Weigand, 134 Pa. Super. 603, 5 A.2d 385.

That the meeting was deliberately staged for the purpose of securing evidence, as stated in the majority opinion, may be a fact. At that meeting neither the district attorney nor the assistant district attorney was present. In my opinion it is not sufficient to warrant a reversal even if such a motive existed.

At the trial Alice Ewadinger testified to all the circumstances described in her statement in appellant's presence; and there was other evidence indicative of appellant's guilt.

In part 2 of the majority opinion this statement appears: "The guilt or innocence of appellant turned entirely on whether the jury believed the girl or whether it believed appellant on the vital part of her testimony that he had driven her to Scranton in his automobile and accepted money from her." As I view it, this is not entirely accurate. There is more to the case than that. As said in the opinion of the court below: "It must be remembered that the gist of this crime is transportation for the purposes of prostitution. The defendant admits that he did transport Alice Ewadinger from the County of Northampton to Lehigh County and from Allentown in Lehigh County on the highway toward Philadelphia. If the jury believed the testimony of Alice that they stopped at two roadhouses and that at the first roadhouse at which they stopped the defendant asked her if she wanted to work at that place, that then the jury could infer that the purpose of his taking her on this ride was for prostitution and the crime would have been completed before they ever arrived at `Patler's Log Cabin Inn.'"

I see no point to the discussion under part 2 of the majority opinion. Appellant was represented at his trial by able and distinguished counsel, and the matter therein referred to was not argued or assigned as an error. It was not even given as a reason for a new trial in the court below. In any event, this was a matter within the control of the trial judge, and I am sure that if he thought that what transpired was prejudicial to appellant he would have acted accordingly notwithstanding that there was no request made by appellant's counsel for any action or ruling by the court. There is nothing to indicate, and there is no complaint, that appellant did not receive a fair and impartial trial. This is the fundamental question, and not whether the police or the district attorney may have failed to exercise good judgment in a matter which was fully presented to the court and to the jury.

The judgment and sentence should be affirmed.