Commonwealth v. Markwich

113 A.2d 323, 178 Pa. Super. 169, 1955 Pa. Super. LEXIS 474

• Court: Superior Court of Pennsylvania
• Decided: April 12, 1955
• Docket: Appeal, 55
• Status: Published

Opinions

Opinion by

Hirt, J.,

Defendant was convicted on six counts of an indictment charging him with bookmaking and with various phases of setting up and maintaining gambling devices in his retail dress shop in Allentown. He was sentenced on the general verdict. In this appeal it is contended that he is entitled to a new trial because of the admission to his prejudice of allegedly incompetent evidence. Although it is conceded, as it must be, that the evidence otherwise is entirely sufficient to support the general verdict of guilt a brief statement of undisputed facts is necessary as a background in considering the question involved.

In the afternoon of March 2, 1954, a raid was made on defendant’s dress goods store by State and local police. The defendant was present throughout the raid. A search of the premises disclosed a mass of bookmaking material and gambling paraphernalia as- well as cryptic accounts of the winnings and losses of various customers of the defendant, resulting from bets on basketball games and horse races. While the raid was in progress the police officers answered six incoming telephone calls. One who called said: “Coal Town Maid, eighth race, Hialeah. That’s standing. Bet $6 to win.” A horse by that name was entered for the eighth race at Hialeah that day. In a second call a male voice reported that “Chicken got knocked off” referring to a simultaneous raid on another gambling establishment operated by one “Chicken” Both. Others who called asked for the “line” or the “pro line” referring to scheduled professional basketball games and the odds for betting as determined by a gambling syndicate. ' It is conceded that the substance of these telephone' calls was properly received in evidence on the principle of Commonwealth v. Prezioso, 157 Pa. Superior Ct. 80, 41 A. 2d 350. During the raid two men came into the store. The first asked for a drink when he observed the police officers. When questioned he admitted a fondness for betting on horses and he had racing sheets and slips on his person, evidencing bets which he had made. The second visitor-one Michael Badon, asked for the “line” to Which defendant replied “I don’t have no package for you today.” "As Badon was leaving-he was taken into' custody and -Was. questioned by Corporal Dane of the State Póli^v ":c r

Later in the day of the raid the defendant, under arrest, was seated in an automobile in front of his store in the custody of R. E. Snyder, a police officer of the City of Allentown, when Corporal Dane with Michael Radon came up to the car. Officer Snyder testified that Corporal Dane then said to Radon in the presence of the defendant: “ 'Tell him what you told me’ meaning Markwich.” And that in reply “Radon said he had made a bet . . . He said he had made a bet the week previously of $30.00 on a basketball game, and he lost it.” To the question “Did he say with whom he made the bet?” Snyder’s answer was: “He said with Markwich.” Defendant’s counsel objected to the admission of this testimony “Unless the exact language is used.” Objection was also made to evidence of a bet made in the previous week “as being too remote.” These were the only objections and both were overruled. In answer to the further question: “Did Markwich say anything?” officer Snyder said: “Markwich denied it and Radon insisted he had made the bet.”

Where, as in this case, specific objections are made to the admission of evidence, all reasons not enumerated in the objections must be taken as waived. Walker v. Walker, 254 Pa. 220, 98 A. 890; Huffman et al. v. Simmons et al., 131 Pa. Superior Ct. 370, 375, 200 A. 271; 2 Henry on Evidence, §721.- Since the only objections to the admission of the above evidence in the present case were specific, and the reasons advanced were invalid, the testimony is properly , in the record. This must be-taken as tacitly conceded by the defendant in this case, for in his appeal no.reference is made to this testimony. The single' trial- error asserted by appellant in seeking a new-trial is the admission of almost identical evidence in the testimony of Corporal Dane,-who; followed officer Snyder as a witness for .the Commonwealth. ' - - - ' . ..

Dane testified that he took Radon to the police car where the defendant was seated and asked Radon to tell Markwich what he had just said to him. In response, according to Dane’s testimony, Radon then said to defendant: “Benny, I placed a bet with you a week ago or so, or just a little better ... I bet on the basketball teams, colleges, and the bet was for $30.00 and I lost that bet.” In reply, Dane testified that Markwich said, “You didn’t bet with me.” This testimony was received in evidence over the defendant’s general objection and the court on motion refused to strike it out. There was error in the ruling. The testimony was hearsay and although the statement attributed to Radon was made in the presence of the defendant there was no implied admission by the defendant of its truth under the rule of Commonwealth v. Vallone, 347 Pa. 419, 32 A. 2d 889, because Markwich categorically denied the charge. It is only when one accused of crime remains silent, although given the opportunity to speak, that an inference of th'e""tr'u.th of the charge may be drawn from his silence. The principle of the Yallone case has no application where as here the accusatory statement is challenged by a denial of its truth. Cf. Commonwealth v. Smith, 105 Pa. Superior Ct. 497, 161 A. 418. Commonwealth v. Ricci, 332 Pa. 540, 3 A. 2d 404 is not in point and in Commonwealth v. DuHadway, 175 Pa. Superior Ct. 201, 103 A. 2d 489, also relied upon by the Commonwealth, there, was no denial by the defendant of. the accusation. made by a third party not called as a witness.

. .-But while .the admission : of-the-above testimony of Corporal Dane- was inadmissible over defendant’s general objection, in our opinion the error was not prejudicial. . The.same evidence..was .already in.the.record in the testimony of officer Snyder- who preceded. Dane on the witness stand. True, in Dane’s testimony there was a repetition of the statement of Radon that he bet $30 with the defendant bnt along with it there was also a repetition of defendant’s denial that Radon made any bet with him. And in this connection the court charged the jury “As has been said before, this Defendant is not charged with making an individual bet. If two persons make an individual bet with each other, that is not a violation of the law with which this man is charged.”

In the opinion of the majority of us, the defendant stands properly convicted in this record; the error complained of was harmless under the circumstances.

Judgment of sentence affirmed and it is ordered that defendant appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with the sentence or any part of it that had not been performed at the time the appeal was made a supersedeas.