Commonwealth v. Savor

119 A.2d 849, 180 Pa. Super. 469, 1956 Pa. Super. LEXIS 592

• Court: Superior Court of Pennsylvania
• Decided: January 17, 1956
• Docket: Appeal, 146
• Status: Published

Opinions

Opinion by

Weight, J.,

Peter Savor, James Clegg and Joseph Reese were indicted in the Court of Oyer and Terminer of Allegheny County on a charge of armed robbery. Reese pleaded guilty, and was a witness for the prosecution at the trial of Savor and Clegg. During the morning session, Reese was questioned by the district attorney as follows: “Q. How long have you known Mr. Clegg and Mr. Savor? A. Well, I met Mr. Savor in 1943 in the Western State Penitentiary . . . Q. You met Mr. Savor in 1943 in the Western State Penitentiary?” Savor’s attorney, then addressed the court: “Your Hon- or, I object to the answers being given by the witness, as being prejudicial to the defendant”. This objection ivas sustained: “Yes, we will sustain that objection, and strike so much of the statement from the record as indicates that the defendant, Savor, had been in the Western Penitentiary”. The trial judge then said to the jurors: “We tell the Jury to disregard that because that might be construed by you as evidence of a conviction of some former crime, and that should not be any evidence to tell against the defendant Savor in the trial of this ease. I ask you to take that from your mind”. After the noon recess, Savor’s attorney made a motion to withdraw a juror, which motion was denied. Both Savor and Clegg were convicted. No motion was made for a new trial. Sentence was imposed, and this appeal by Savor followed.

Appellant’s sole contention is that it was reversible error for the trial judge to refuse to withdraw a juror. In limine, it should be noted that the court below was not afforded an opportunity to pass upon this question. For this reason the appeal should be dismissed. See Commonwealth v. Aikens, 179 Pa. Superior Ct. 501, 118 A. 2d 205; Commonwealth v. Pittman, 179 Pa. Superior Ct. 645, 118 A. 2d 214. However, since appellant’s attorney at tlie trial was immediately thereafter called into army service, the Commonwealth “does not desire to press this technical point”. Under the circumstances, we have concluded to dispose of the appeal on the merits.

It is of course true, as appellant contends, that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime: Commonwealth v. Burdell, 380 Pa. 43, 110 A. 2d 193. However, this proposition does not necessarily operate to make inadmissible a statement as to where a witness first met the defendant. For instance, in Commonwealth v. Robinson, 163 Pa. Superior Ct. 16, 60 A. 2d 824, it was said that the Commonwealth “had a right to show the first identification of the defendant by the prosecuting witness, whether she saw him on the street and had him arrested, or whether she saw him in a prison cell while being held for some other offense (italics supplied)”. See also Commonwealth v. Biancone, 175 Pa. Superior Ct. 6, 102 A. 2d 199, in which case the victim of a robbery was permitted to testify that he made his first identification of the defendants in a prison. While appellant’s identity was not at issue in the case at bar, the theory of his defense was that he was unaware of any unlawful design.¹ Therefore it would seem that the prior intimacy of the participants should constitute relevant evidence, notwithstanding the incidental and unsolicited disclosure that their acquaintance had its inception in the penitentiary. In Commonwealth v. Biddle, 200 Pa. 647, 50 A. 264, three defendants were jointly indicted for a murder committed in the act of buglary. One was permitted to testify as to the criminal concert of the three long anterior to the particular crime under investigation, even though other crimes were mentioned by the witness in a general way, but without attempt on the part of the Commonwealth to elicit such evidence. See also Commonwealth v. Robb, 284 Pa. 99, 130 A. 302.

Howbeit, the Commonwealth concedes on this appeal that the remark of the witness was improper. “The question then arises as to how the error should be corrected; whether by withdrawing a juror or by striking out the testimony and admonishing the jurors to disregard the irrelevant testimony. This usually involves a consideration of the circumstances under which the irrelevant evidence was given and its probable effect on the jury”: Saunders v. Commonwealth, 345 Pa. 423, 29 A. 2d 62. The best approach to a rule was enunciated in Commonwealth v. Blose, 160 Pa. Superior Ct. 165, 50 A. 2d 742, wherein we adopted the following language of Mr. Justice Rutledge in Kotteakos v. United States, 328 U. S. 750, 66 S. Ct. 1239: “If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand”.

In the case at bar, we are satisfied from our review of the record that appellant received a thoroughly fair trial and was properly convicted. Indeed, a verdict of not guilty would have been a miscarriage of justice. We can say with assurance that appellant was not prejudiced by the alleged improper remark. It is therefore our conclusion that the unsolicited observation here challenged, and concerning which the jury was promptly admonished, does not constitute a sufficient reason for the grant of a new trial.

The judgment of sentence is affirmed.

1 Appellant did not enter the premises in which the robbery took place, remaining outside in the get-away car. However, Reese testified that appellant knew of the intended robbery, that appellant’s revolver was used, as well as his automobile, and that appellant received an equal share of the loot.