COMMONWEALTH of Pennsylvania v. William J. DALAHAN, Appellant.
Superior Court of Pennsylvania.
Decided Jan. 19, 1979.
396 A.2d 1340
Submitted June 19, 1978. Petition for Allowance of Appeal Denied September 19, 1979.
James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
HESTER, Judge:
Appellant was convicted of attempted burglary and possession of an instrument of a crime and was sentenced to 2-23 months in jail and one year probation. Post-trial motions were denied and this appeal followed.
Appellant first asserts that this action should have been dismissed because the Commonwealth failed to try him
The waiver form signed by appellant does not appear of record, however, in the testimony at the hearing on the motion to dismiss, the District Attorney read the form signed by the appellant:
I have been advised and I am aware of the implications and consequences of the above application. And I do not have objections to the continuance. I am further aware of my right to a prompt trial within one hundred and eighty days from the date of the complaint under Pennsylvania Rules of Criminal Procedure Rule 1100. I understand by requesting a continuance I hereby waive my rights to a prompt trial under Rule 1100. (N.T., p. 7)
Recently the Supreme Court of Pennsylvania in Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978) ruled that the following waiver form was ineffective as a waiver of Rule 1100 rights:
“I am aware and have been advised of the implications and consequences of the above application and do not have objection to the continuance. I am further aware of my right to a speedy trial and that a continuance shall cause a delay in having said criminal charges disposed of by the Court.” (At 477 Pa. 406, 383 A.2d 1271)
The court reasoned that this waiver form was ineffective because it did not explain what “speedy trial” meant. The form used here is almost identical, except, it explains that “prompt trial” means trial within 180 days of the filing of the complaint. This change in the waiver form, we feel, satisfied the missing ingredient of the form used in Coleman, supra.
Appellant, however, argues that even assuming he knew what he was signing, he was laboring under the false impression that the case would be continued for only two weeks while he procured the services of an attorney. The waiver form did include a note that the case would be passed for two weeks and then placed back on the trial list. However, the lower court found, after listening to the testimony at the hearing, that it was improbable that the appellant was under the impression that this would be a continuance for only two weeks, when, in fact, the appellant did not attempt to contact any attorney until at least a month later. We think that conclusion was correct based on the testimony and circumstances elicited below.
We recognize that since this right to a speedy trial is one guaranteed by the Constitution, the Commonwealth was under a burden of proving that the waiver of such right was intelligently made. See e. g. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
We have reviewed the testimony and the findings of the court below and conclude that the Commonwealth has satisfied its burden. The appellant‘s waiver was effective. His first contention is without merit.
Appellant next contends that there was insufficient evidence to support the conviction of attempted burglary and possession of the instrument of a crime.
In reviewing the evidence, upon a claim of insufficiency, we must examine it in the light most favorable to the Commonwealth, the verdict winner. Commonwealth v. Smith, 238 Pa.Super. 422, 357 A.2d 583 (1976).
The evidence in this case was entirely circumstantial. Officer Maloney of the Lower Merion Township Police Department was on a special “residential robbery” patrol and
Appellant argues that the Commonwealth‘s evidence merely places him at the scene of the crime and thus, is insufficient as a matter of law, to sustain his conviction.
Appellant‘s statement of the law is entirely correct, mere presence at the scene without more, is insufficient to sustain a conviction. See Commonwealth v. Herman, 227 Pa.Super. 326, 323 A.2d 228 (1974). However, we believe that the logical inference to be drawn from the Commonwealth‘s evidence does support a finding of guilt. Appellant was discovered crouching down in an alleyway at 3:30 a. m. Immediately adjacent to him was a tire iron. The window to the luncheonette appeared to have been pried open since slivers of wood were still present on the windowsill. Appellant could not explain his presence other than to say he stopped on his way home from a party in Paoli where he had walked from (a distance of 15 to 20 miles). This was
We therefore find the evidence to be sufficient and thus this contention to be without merit.
Appellant‘s next contention is that the court erred in permitting police officers to testify that they were on a special assignment because of a rash of burglaries in the area. Appellant argues that to allow these officers to testify that they apprehended appellant while on a special assignment to thwart residential burglars was unduly prejudicial because it suggested to the jury that appellant‘s presence could be explained only by the fact that he must have been there to commit a burglary.
While we believe that the officers testimony as to the “special duty” they were on that night was somewhat irrelevant, we do not conclude that these statements were so “unduly prejudicial and inflammatory” as to warrant a new trial.
We believe appellant‘s argument is specious. If drawn to its logical end, it would require all police officers to testify in plain clothes without reference to their occupation as policemen, since according to appellant‘s argument, if one is caught by a policeman, whose job it is to catch wrongdoers, then obviously he must be guilty of some wrongdoing. All people are aware that the function of a policeman is to apprehend suspected wrongdoers. The fact that the policeman is on special duty to apprehend burglars and he arrests an individual who is subsequently charged with burglary, does not create a prejudicial inference with the jury that he
Appellant next contends that the court erred when it refused to permit the appellant to examine a prior written statement of the luncheonette owner‘s wife for exculpatory matter. The owner‘s wife was not called by the Commonwealth as a witness and the District Attorney represented that the contents of the statement were non-exculpatory in nature and merely cumulative.
The appellant made no pre-trial motion for discovery under
The next contention is that the court erred in not further instructing the jury on circumstantial evidence by using an example offered by the appellant.
When reviewing a court‘s charge for error, it is our duty to review all of the charge that relates to the asserted error. Commonwealth v. Duffy, 252 Pa.Super. 148, 381 A.2d 157 (1977). The appellant claims that the charge improperly allowed the jury to infer that his mere presence
We have reviewed the court‘s charge as to circumstantial evidence,1 and we find that it adequately explains the correct law as regards to circumstantial evidence and it was not error for the judge to refuse to use appellant‘s requested example. Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976); Commonwealth v. Newsome, 462 Pa. 106, 337 A.2d 904 (1975).
We find no merit in this contention.
Appellant next asserts that the court erred in failing to grant a mistrial based upon certain opening remarks of the District Attorney. This issue, however, was not raised in appellant‘s post-verdict motions and hence it is waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).
Similarly, we consider the last of appellant‘s allegations to be also waived. Appellant contends that his statements to the police at the time of arrest should have been suppressed. In appellant‘s brief, the following appears:
“Defendant sought to suppress these statements (Pre-trial) on the grounds that the Commonwealth‘s method of employing them at trial tended to incriminate him. The theory of suppression relied upon here is that the statements were obtained after an illegal arrest in that no probable cause to arrest existed.” (Appellant‘s brief, pg. 16)
This he cannot do. The appellant cannot change horses in mid-stream. The ground supporting a certain issue must remain the same at both the trial and the appellate levels. As the Supreme Court held in Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975):
We are constrained to conclude that the view expressed in Commonwealth v. Wayman, [454 Pa. 79, 309 A.2d 784] supra, is at variance with well-considered judicial policy and should be discarded. To make a distinction turn upon the fact that one is merely advancing a new theory, creates a fiction which frustrates the very purpose sought to be accomplished by a strict application of waiver. As was aptly stated by Mr. Justice Roberts speaking for this Court in Kimmel v. Somerset County Commissioners, [460] Pa. [381], 333 A.2d 777 (1975):
“It is a fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that
was not presented to the trial court. See Altman v. Ryan, 435 Pa. 401, 406-7, 257 A.2d 583, 585 (1969): Abrams Will, 419 Pa. 92, 98, 213 A.2d 638, 641 (1965); Fisher v. Brick, 358 Pa. 260, 264, 56 A.2d 213, 215 (1948); Mayer v. Chelten Avenue Building Corp., 321 Pa. 193, 195, 183 A. 773 (1936).” Id., 460 Pa. at [384], 333 A.2d at 779.
Judgment of sentence affirmed.
CERCONE, J., concurs in the result.
JACOBS, President Judge, files a dissenting statement in which SPAETH, J., joins.
SPAETH, J., files a dissenting statement.
This case was decided prior to the retirement of JACOBS, former President Judge.
HOFFMAN, J., did not participate in the consideration or decision of this case.
JACOBS, President Judge, dissenting.
I dissent to the majority‘s disposition of the Rule 1100 issue. In order to find a valid waiver, I would require that the written waiver form include the explanation that if the defendant is not tried within 180 days he shall be discharged. The defendant must be informed that that is the right he is waiving.
SPAETH, J., joins in this dissenting statement.
SPAETH, Judge, dissenting.
I join in the President Judge‘s dissenting statement, but add this comment on remedy. I believe we should remand for another Rule 1100(f) hearing. Although the Commonwealth did not argue that the trial was timely even without appellant‘s waiver, facts in the record suggest it might have been. If it was, we should affirm, for we may affirm an order for any reason supported by the record, even though that reason was not argued below. Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976); Commonwealth v. Ditmore, 242 Pa.Super. 248, 363 A.2d 1253 (1976).