COMMONWEALTH of Pennsylvania, Appellee, v. Robert HENNIGAN, Appellant.
Superior Court of Pennsylvania.
Submitted Aug. 9, 1999. Filed May 9, 2000.
753 A.2d 245
¶ 23 Next, Appellant argues that he furnished sufficient additional consideration to overcome the presumption that he is an at-will employee. An employee can defeat the at-will presumption by establishing that he gave his employer additional consideration other than the services for which he was hired. Cashdollar v. Mercy Hosp. of Pittsburgh, 406 Pa.Super. 606, 595 A.2d 70, 72-73 (1991). Additional consideration exists “when an employee affords his employer a substantial benefit other than the services which the employee is hired to perform, or when the employee undergoes a substantial hardship other than the services which he is hired to perform.” Id. at 73 (citation omitted). For example, in Cashdollar, we found sufficient additional consideration where the employee, in response to the employer‘s persistent recruitment efforts, gave up a stable position in another state, sold his house, and relocated to a new city with his pregnant wife, only to be fired аfter sixteen days on the job. Id. On the other hand, our Courts have found no additional consideration where the employee “has suffered detriments, in the course of his or her employment, that are ‘commensurate with those incurred by all manner of salaried professionals.‘” Id., citing Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571, 580 (1986) (no additional consideration when employee was fired after eight years over a difference of opinion with his employer, even though employee had originally moved from Newark to Pennsylvania and had foregone other employment opportunities over the years), appeal denied, 532 Pa. 665, 616 A.2d 986 (1992).
¶ 24 Appellant argues that he gave additional consideration by conferring “substantial, superior job performance.” Appellant‘s Brief at 17. A general allegation of superior work performance is insufficient to establish additional consideration. First, performing well on the job does not generally confer a substantial benefit on his employer beyond that which the employee is paid to do. Moreover, performing well on the job does not generally cоnstitute a detriment beyond that which is incurred by all manner of salaried professionals. After reviewing Appellant‘s complaint as a whole, we conclude that Appellant has alleged no facts tending to establish that he conferred additional consideration. This claim fails.
¶ 25 Finally, Appellant argues that the trial court erred in granting preliminary objections because Appellant alleged that FedEx specifically intended to harm him. In Krajsa, 622 A.2d at 360, we held an employee cannot maintain a cause of action for wrongful discharge based on a “specific intent to harm” theory. We reasoned that such a theory was no longer viable in light of our Supreme Court‘s decision in Paul, supra, which held that an at-will employee has no cause of action for wrongful discharge unless the termination violates public policy. Id. Accordingly, Appellant‘s “specific intent to harm” claim fails as a matter of law.
¶ 26 Order affirmed.
¶ 27 McEWEN, President Judge, Concurs in the Result.
Richard E. Johnson, Philadelphia, for appellant.
Catherine Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before McEWEN, President Judge, and LALLY-GREEN and OLSZEWSKI, JJ.
LALLY-GREEN, J.:
I.
¶ 2 The record reveals that on February 25, 1998, Philadelphia Police Officer Myra Jones of the Narcotics Field Unit drove to 4148 Westminster Avenue in an attempt to purchase drugs. N.T. Trial, 10/7/98, at 11. While she was in the house, Officer Jones gave a pre-marked $10 bill to co-defendant James Williams in exchange for two packets of crack cocaine. Id. at 16, 18.1 Officer Jones left the apartment and immediately notified Officer Calvin Rayfield of the sale. Id. at 20.
¶ 3 Officer Rayfield encountered Mr. Williams on the first floor of the house. Id. at 145. Officer Rayfield found 30 packets of crack cocaine and one packet of marijuana on Mr. Williams’ person. Id. at 146, 149. A female who was in the same room as Mr. Williams was released without being charged. Id. at 163.
¶ 4 Officer Palmer pursued someone who was fleeing to the second floor. Id. at 52. Officer Palmer then proceeded to the rear bedroom, where he saw two men and
¶ 5 Officer Louis Cujdik was assigned to guard the rear of the house. Id. at 85. He saw the second-floor rear window break, and then saw three people fall out the window and land on a pile of rubbish. Id. at 86-87. Two of the three were Ms. Travers and Appellant. Id. at 88.2 Officer Cujdik found cash and a set of keys on Appellant‘s person. Id. at 88-89. Officer Cujdik then brought Appellant to the front of the house, and gave the cash to Officer Rayfield. Id. at 92. Officer Rayfield testified that he received the pre-marked $10 bill as well as $299 in cash from Officer Cujdik. Id. at 154-155, 172, 191.3 Officer Rayfield clearly remembered finding the marked bill in the property recovered from Appellant at the scene. Id. at 193. He then placed the money in an evidence bag. Id. at 191.
¶ 6 The marked ten dollar bill was not preserved as evidence in the case. Id. at 104. At trial, the Commonwеalth presented a copy of the $10 bill, but not the original. Id. at 148. Officer Rayfield explained that the bill went back into the Narcotics Unit‘s “buy fund,” and was used in another drug operation. Id. at 156.4 Property receipt 2122980, listing property received from Appellant, did not list the marked bill because “pre-recorded buy money goes back into our fund.” Id. at 157-158; see also id. at 173 (it is not normal police procedure to put marked money on the property receipt, because the money belongs to the buy fund). Officer Rayfield wrote in an investigative report that Appellant was found with $299 in cash plus the pre-marked bill. Id. at 191. In another section of the report, however, Officer Rayfield wrote that the marked bill was recovered from Mr. Williams. Id. at 178. Officer Rayfield explained at trial that the latter entry “is just a simple typo.” Id. at 193.
¶ 7 At the scene, Appellant told the officers that the car keys that Officer Cujdik had taken from Appellant fit his 1985 Buick Park Avenue that was parked across the street. Id. at 90. Officer Cujdik did not see Appellant operating the car, and did not know how long it had been since the car was last driven. Id. аt 100. Officer Cujdik testified that he took the automobile to the police station for safekeeping because Appellant did not live in the area. Id. at 97-98. Officer Cujdik conducted an inventory search, and found a loaded .380 caliber handgun under a pile of clothes in the back seat. Id. at 90.
¶ 8 Before trial, Appellant moved to suppress the gun found during the inventory search. At the suppression hearing, Officer Cujdik was asked whether it is standard procedure “to remove cars from the front of homes when individuals who are charged with drug activity are arrested inside of homes.” N.T. Suppression, 10/6/98, at 90-91. Officer Cujdik responded, “If we can ascertain that they own a vehicle, we would take it back with us. Yes.” Id. at 91. Occasionally, Officer Cujdik commented, officers remove the arrestee‘s vehicle even when he is arrested from his own house. Id. Officer Cujdik further
¶ 9 The suppression court denied Appellant‘s motion to suppress without producing formal findings of fact or conclusions of law. The court did state the following on the record:
As to the keys, I think certainly the officers taking the car for safekeeping, since the defendant didn‘t live in that area, would certainly be a smart thing to do. As I have indicated, I know the area. I‘ll take judicial notice of the area of 41st and Westminster being a very low income area, and, of course, the allegations there‘s drug trafficking there, and especially that would not be a place that you would want to leave your car for safekeeping. Whether the individual said they wanted to move it or not would be of no moment, plus the District Attorney‘s citation from the Motor Vehicle Code seems to indicate that the police are required to take the car into safekeeping.
For all of those reasons and for the other reasons that аre of record, the motion to suppress is denied.
Id. at 115-116; see also id. at 103 (“This Court is familiar with the area of 41st and Westminster. It‘s certainly not a place that you would want to leave a car unless you had some kind of access to it on a regular basis.“).
¶ 10 At trial, Appellant presented the following defense: he went to the house to visit a friend; he did not know that drugs were being sold in the house; he did not buy or sell drugs; and, he never had possession of the pre-marked bill. N.T. Trial, 10/7/98, at 214-215, 217-218. After he heard “commotion” downstairs, Appellant ran away but said he did not know the reason he was running. Id. at 216. He had $299 in cash from a tax refund on his person. Id. at 218. Appellant admitted that he did not have a license for the gun in his car, but he explained that he was holding the gun for a friend. Id. at 222.
¶ 11 During closing arguments, Appellant‘s counsel argued that it was highly unlikely that Appellant received the marked bill from Mr. Williams in the five minute span between Officer Jones’ drug buy and the time the police entered the house, particularly because Mr. Williams was found on the first floor and Appellant was first seen on the second floor. N.T. Trial, 10/8/98, at 21. In addition, he argued that the critiсal piece of evidence linking Appellant to the crime, the $10 bill, was not listed or mentioned on Appellant‘s property receipt. Id. at 25. He argued that Officer Rayfield did not commit a “typo” when he reported that the pre-marked $10 bill was found on Mr. Williams. Id. at 28. Rather, counsel argued, the police falsified the section of the report which indicated that the bill was found on Appellant:
Police Officer Rayfield, being an experienced police officer, had a suspicion. Any of us would. It‘s natural. Somebody is in a drug house. There‘s a bust. He‘s got cash on him, and he‘s got keys to a car where there‘s a gun, so there is a suspicion. I don‘t criticize him for that. But, ladies and gentlemen of the jury, you know what happened. His thinking is, “you know, this guy, he‘s got to be part of it. He‘s got to be in on this. I‘ve been in the business a long time.” He takes the ten dollars from this pile. Real simple, folks, you just move it right over here and you write up the report that way. I submit that‘s what happened here. . . .
That ten dollar bill was never taken from my client, and the Commonwealth‘s own evidence shows that it wasn‘t. Human nature being whаt it is, for good, solid police officers who have
an idea, a suspicion, they make mistakes. We know they make mistakes, and sometimes they will do something—Maybe they even fool themselves. Maybe it‘s a subconscious thing. I don‘t know.
Id. at 28-30.
¶ 12 In response, Assistant District Attorney Andrew Kline argued that Appellant was in charge of handling the money for drug sales taking place in the house. Id. at 82-83. The prosecutor noted that Appellant had an unusually large number of small-denomination bills, and was the only person with money in the house. Id. The prosecutor also argued that Appellant‘s counsel improperly focused on Officer Rayfield‘s typographical error:
And against all of [the evidence against Appellant], ladies and gentlemen of the jury, [Appellant‘s counsel] says that the mistake was one word in a case with 20-some odd exhibits, with many, many pages of documents, with physical evidence, with testimonial evidence. Does he point to what Officer Cujdik said? What Officer Rayfield said? He doesn‘t point to that. He points to one word in a case with all of this evidence. One word. And [Appеllant‘s counsel] stood before you and said, “I want you to look at the evidence in this case. I‘m not going to try to distract you from the evidence in this case.”
Ladies and gentlemen of the jury, looking at one word in the police documents is a Philly Phanatic dancing on that dug-out.
Id. at 89. Next, the prosecutor stated that the police officers in this case would not ruin their reputations by lying on the stand in order to convict Appellant. Id. at 89-90. Finally, the prosecutor implied that Appellant, rather than the police officers, had a motive to lie in this case. Id. at 91.
¶ 13 As noted above, the jury convicted Appellant of possession of a controlled substance with intent to deliver, criminal conspiracy, and firearms not to be carried without a license. Id. at 154-155. Appellant was sentenced to 5 to 10 years for possession with intent to deliver, 1 to 2 years for conspiracy, and 7 years probation for carrying a firearm without a license. This appeal followed.
II.
¶ 14 Appellant raises four issues on appeal:
- Was the evidence insufficient to support the charge of criminal conspiracy insofar as the Commonwealth failed to present any evidence to establish that Appellant entered into a corrupt confederation with any individual or agreed to commit a crime with another individual?
- Was the evidence insufficient to support the charge of possession of a controlled substance with intent to deliver insofar as there was no evidence presented that indicated either that the Appellant himself committed this crime or that he conspired with or was an accomplice of any individual who may have committed this crime?
- Did the suppression court err in failing to suppress the gun found in the Appellant‘s vehicle?
- Did the trial court err in overruling an objection to certain comments made by the prosecutor during his closing speech wherein he called the Appellant and his witnesses liars, impermissibly vouched for the credibility of his own witnesses and denigrated trial counsel‘s defense strategy?
Appellant‘s Brief at 4.
III.
¶ 15 First, Appellant argues that the evidence was insufficient to support his conviction for conspiracy. Our standard of review is well-settled.
“The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Heberling, 451 Pa.Super. 119, 678 A.2d 794, 795 (Pa.Super.1996) (citing Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994)). In applying [the above] test, we may not weigh the evidence and substitute our judgment for that of the factfinder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant‘s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Commonwealth v. Cassidy, 447 Pa.Super. 192, 668 A.2d 1143, 1144 (Pa.Super.1995) (citations omitted). The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the triеr of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted).
Commonwealth v. Vetrini, 734 A.2d 404, 406-407 (Pa.Super.1999).
¶ 16 “To sustain a conviction for criminal conspiracy, the Commonwealth must establish that the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and (3) an overt act was done in furtherance of the conspiracy.” Commonwealth v. Rios, 546 Pa. 271, 283, 684 A.2d 1025, 1030 (1996), cert. denied, 520 U.S. 1231, 117 S.Ct. 1825, 137 L.Ed.2d 1032 (1997), citing
¶ 17 Proof of a conspiracy is almost always extracted from circumstantial evidence. Commonwealth v. Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173, 1176 (1994). The Commonwealth may present a “web of evidence” linking the defendant to the conspiracy beyond a reasonable doubt. Johnson, 719 A.2d at 785. The evidence must, however, “rise above mere suspicion or possibility of guilty collusion.” Swerdlow, 636 A.2d at 1177 (citation omitted). Mere association, presence at the scene, or knowledge of the crime is insufficient; the Commonwealth must prove that the defendant “bеcame an active participant in the criminal enterprise and that he had knowledge of the conspiratorial agreement.” Id. (citation omitted).
IV.
¶ 19 Next, Appellant argues that the evidence was insufficient to support his conviction for possession with intent to deliver. In order to establish possession with intent to deliver, the Commonwealth must prove both possession of a controlled substance and the intent to deliver that substance.
¶ 20 Here, as noted above, the evidence was sufficient to establish that Appellаnt participated in a conspiracy with Mr. Williams to sell drugs to Officer Jones. Thus, Appellant is legally responsible as an accomplice of Mr. Williams for the underlying crime of possession with intent to deliver. Appellant‘s second claim fails.
V.
¶ 21 Next, Appellant argues that the suppression court erred in admitting the gun, which was found in his vehicle after an inventory search. Our standard of review is clear:
In reviewing an order from a suppression court, we consider the Commonwealth‘s evidence, and only so much of the defendant‘s evidence as remains uncontradicted. We accept the suppression court‘s factual findings which are supported by the evidence and reverse only when the court draws erroneous conclusions from those facts.
Commonwealth v. Hoopes, 722 A.2d 172, 175 (Pa.Super.1998) (citation omitted), appeal denied, 558 Pa. 629, 737 A.2d 1224 (1999).
A.
¶ 22 Inventory searches are a well-defined exception to the search warrant requirement. Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); Commonwealth v. Nace, 524 Pa. 323, 327, 571 A.2d 1389, 1391 (1990), cert. denied, 498 U.S. 966, 111 S.Ct. 426, 112 L.Ed.2d 411 (1990). “The purpose of an inventory search is not to uncover criminal evidence. Rather, it is designed to safeguard seized items in order to benefit both the police and the defendant.” Commonwealth v. Woody, 451 Pa.Super. 324, 679 A.2d 817, 819 (1996).
¶ 23 A warrantless inventory search of an automobile is different from a warrantless investigatory search of the same. An inventory search of an automobile is permitted where: (1) the police have lawfully impounded the automobile; and (2) the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle. Id. at 368-372. A warrantless investigatory search of an automobile requires both a showing of probable cause to search and exigent circumstances. See Commonwealth v. Luv, 557 Pa. 570, 735 A.2d 87 (1999); Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995).
¶ 24 In determining whether a proper inventory search has occurred, the first inquiry is whether the pоlice have lawfully impounded the automobile, i.e., have lawful custody of the automobile. Opperman, 428 U.S. at 368. The authority of the police to impound vehicles derives from the police‘s reasonable community care-taking functions. Id. Such functions include removing disabled or damaged vehicles from the highway, impounding automobiles which violate parking ordinances (thereby jeopardizing public safety and efficient traffic flow), and protecting the community‘s safety. Id. at 368-369, 376 n. 10.
¶ 25 The second inquiry is whether the police have conducted a reasonable inventory search. Id. at 370. An inventory search is reasonable if it is conducted pursuant to reasonable standard police procedures and in good faith and not for the sole purpose of investigation. See Bertine, 479 U.S. at 374 (“reasonable police regulations relating to inventory procedures of automobiles administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure“). Compare Florida v. Wells, 495 U.S. 1, 4-5, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (where police had no standard procedure with respect to the opening of closed containers found during inventory searches, marijuana found in a closed suitcase was properly suppressed). Said another way, the inventory search must be pursuant to reasonable police procedures, and conducted in good faith and not as a substitute for a warrantless investigatory search.
B.
¶ 26 Pennsylvania Courts have adopted the principles set forth in Opperman. See Commonwealth v. Scott, 469 Pa. 258, 267, 365 A.2d 140, 144-145 (1976) (authorizing post-arrest impoundment of vehicle where trial court found that impoundment was essential,6 where inventory procedure was standard practice after car had been impounded, and where vehicle was in high-crime area with expensive stereo equipment in plain view). In Brandt, this Court refined and explained Opperman as follows:
[T]he Commonwealth must show that the search was in fact an inventory search pursuant to the objectives laid down in Opperman [.] The hearing judge must be convinced that the police intrusion into the automobile was for the purpose of taking an inventory of the
car and not for the purpose of gathering incriminating evidence. Those facts and circumstances which the hearing judge must consider include the scope of the search, the procedure utilized in the search, whether any items of value were in plain view, the reasons for and nature of the custody, the anticipated length of the custody, and any other facts which the court deems important in its determination. If, after weighing all the facts and circumstances, the court is of the opinion that it was an inventory search of an automobile lawfully in police custody, then any evidence seized as a result of this “reasonable” inventory search is admissible. If, on the other hand, the hearing judge determines that the Commonwealth has not shown that the search was part of the police care-taking function rather than their investigative function, the probable cause-warrant standard must be used for determining reasonableness.
Brandt, 366 A.2d at 1242 (citations and footnote omitted).
¶ 27 In Pennsylvania, the first inquiry is also whether the police have lawful custody of the vehicle. Id. Post-arrest impoundments of vehicles were upheld in the following situations: (1) in the interests of public safety and efficient movement оf traffic;7 (2) where no one claimed ownership of the automobile;8 (3) where items of value were observed by the police in plain view and the automobile was located in a high-crime area;9 and (4) pending the obtaining of a search warrant.10 On the other hand, where a defendant is stopped on the highway for a summary offense, the police have no statutory authority to impound the defendant‘s vehicle.11
¶ 28 The second inquiry by Pennsylvania Courts is whether the inventory search is a legitimate one. The courts appear to focus on whether the inventory search is, in fact, an investigatory search12 or is beyond what is necessary to inventory the contents of the vehicle.13
¶ 29 We now first address whether the police lawfully impounded Appellant‘s vehicle in this case. The Commonwealth argues that the police lawfully impounded Appellant‘s vehicle after his arrest through the authority of
¶ 30
(c) Removal to garage or place of safety.—Any police officer may remove or cause to be removed to the place of business of the operator of a wrecker or to a nearby garage or other place of safety any vehicle found upon a highway under any of the following circumstances:
(1) Report has been made that the vehicle has been stolen or taken without the consent of its owner.
(2) The person or persons in charge of the vehicle are physically unable to provide for the custody or removal of the vehicle.
(3) The person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay.
(4) The vehicle is in violation of section 3353 (relating to prohibitions in specified places) except for overtime parking.
(5) The vehicle has been abandoned as defined in this title[.]
¶ 31 In Collazo, the defendant was found guilty of possession and delivery of a controlled substance in connection with a sale of heroin in a public park. Collazo, 654 A.2d at 1175. Police saw Collazo drive to the park in a car, exit the car, meet the buyer, return to the car, open the glove compartment, return to the buyer, and hand him an object in exchange for monеy. Id. Following Collazo‘s arrest, the police impounded his vehicle. Id. Collazo told police that he owned the vehicle, but that it was registered in another person‘s name. Id. When the police could not read the vehicle identification number (VIN), the police searched the car for the registration papers of the owner by looking in the glove compartment and found a packet of heroin with the same label as the heroin that had been sold in the park. Id.
¶ 32 The Court ruled that Collazo‘s claim regarding the legality of the search was waived because he failed to raise it before trial. Id. at 1176. Despite this finding of waiver, the issue was addressed on the merits. The Court concluded that the police had conducted a valid inventory search:
It is clear that the vehicle which had been operated by appellant was lawfully seized and impounded by police. Under
75 Pa.C.S. § 3352(c)(3) , police could remove to a garage or place of safety any vehicle found after “the person driving or in control of the vehicle is arrested for an allеged offense for which the officer is required by law to take the person arrested before the issuing authority without unnecessary delay.”75 Pa.C.S. § 3352(c)(3) . Here, the vehicle had been seized by police after appellant‘s arrest for selling heroin to the informant. The motive for the subsequent search of the vehicle was solely to identify its owner and not to uncover evidence of crime. The search, therefore, was within the caretaking function of the police, and, as such, was properly conducted without a warrant.
¶ 33 Collazo is not controlling here because the Court found that the issue had
¶ 34 The proper interpretation to be given to
¶ 35 The phrase “in control of the vehicle” is not defined in the statute; therefore, we look to legislative intent because the Legislature‘s intention controls.
¶ 36 Section
¶ 37 When
¶ 38 We now examine whether the police lawfully obtained custody of Appellant‘s vehicle under
D.
¶ 39 The issue becomes whether the police had legitimate authority under our precedent lawfully to impound Appellant‘s vehicle. The trial court found that impoundment was justified because Appellant‘s vehicle would have otherwise been left unattended in a high-crime area. N.T. Suppression, 10/6/98, at 103, 115-116. In doing so, the court implied that the police properly impounded the vehicle because it would have been exposed to a risk of theft or damage.
¶ 40 We now inquire whether the record supports a conclusion that impoundment was within the community care-taking functions of the police. The record reflects that: Appellant‘s car was legally parked on a public street; Appellant was not driving his vehicle; Appellant was not near the vehicle at thе time of his arrest; Appellant‘s vehicle was not shown to have a nexus to the crime for which Appellant was being arrested; no items of value were in plain view in the vehicle; and Appellant‘s vehicle was not shown to cause a public safety concern or traffic control concern. The record fails to demonstrate that impoundment occurred: in the interests of public safety and efficient movement of traffic; where no one claimed ownership of the automobile; where items of value were observed by the police in plain view and the automobile was located in a high-crime area; or pending the obtaining of a search warrant. Since the record fails to demonstrate that a community care-taking function was served by impoundment in this case, the police did not obtain lawful custody of the vehicle when the police impounded it. The esteemed trial court erred when it held otherwise and refused to grant the motion to suppress.
¶ 41 The Commonwealth argues (and the trial court concluded) that impoundment of the vehicle is proper if the vehicle is impounded solely for the protection of Appellant‘s personal property. While it may be true that an arrestee‘s vehicle may be exposed to danger if it is left legally parked on the public street in a high-crime area, this concern, standing alone, is inadequate to override the reason-
¶ 42 Finally, assuming the impoundment is lawful, we address whether the inventory search was lawful. The Commonwealth presented no evidence that the inventory search took place pursuant to standard police procedures, other than testimony from a police officer that the impoundment was “routine.” N.T. Suppression, 10/6/98, at 90-91. Notably, the trial court made no finding that the inventory search took place pursuant to standard procedures. Since the Commonwealth failed to demonstrate that the inventory search was in accordance with relevant legal standards articulated above, the learned trial court also erred when it refused to grant the motion to suppress. Appellant‘s claim has merit.
VI.
¶ 43 We now turn to Appellant‘s final argument on appeal. Appellant claims that the trial court erred by overruling objections to the prosecutor‘s closing argument. According to Appellant, the prosecutor impermissibly called Appellant a liar and denigrated Appellant‘s trial strategy. Apрellant‘s Brief at 34-38.
¶ 44 We begin with Appellant‘s claim that the prosecutor called Appellant a liar. To preserve an issue on appeal, counsel must call the trial court‘s attention to the specific alleged error at a time when the error can be corrected. Commonwealth v. Montalvo, 434 Pa.Super. 14, 641 A.2d 1176, 1184 (1994). The record reveals that Appellant‘s trial counsel did not object at any point where the prosecutor even implied that Appellant was a liar. Rather, counsel objected when the prosecutor responded to the defense‘s implication that the police had falsified evidence:
[District Attorney Kline:] And what evidence have they set forth that shows that these officers, doing the dangerous
job that we know they‘ve got, got on that stand and told you people lies? What evidence do we have? Let‘s see. If the police officers were lying, ladies and gentlemen of the jury, do you think— [Appellant‘s counsel:] Objection. There was no argument—
[The court:] Overruled, counsel. Sit down.
[Appellant‘s counsel:] —that the police officers—
[The court:] Overruled. Sit down.
N.T. Trial, 10/8/98, at 90 (emphasis added). Appellant is not entitled to relief on this claim.
¶ 45 Finally, we address Appellant‘s claim that the prosecutor improperly denigrated counsel‘s trial strategy. Our Supreme Court has set forth the following rules applicable to this claim:
Generally, a prosecutor‘s arguments to the jury are not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict. Commonwealth v. Gorby, 527 Pa. 98, 112-114, 588 A.2d 902, 909 (1991). Moreover, the prosecution and the defense alike are afforded wide latitude and may employ oratorical flair in arguing to the jury. Commonwealth v. Zettlemoyer, 500 Pa. 16, 52-55, 454 A.2d 937, 956-957 (1982). The arguments advanced must, however, be based upon matters in evidence and/or upon any legitimate inferences that may be drawn from the evidence. Commonwealth v. Chester, 526 Pa. 578, 597-599, 587 A.2d 1367, 1377 (1991). Finally, any allegedly improper prosecutorial comments must also be examined within the context of the conduct of defense counsel. Commonwealth v. Morales, 549 Pa. 400, 423-425, 701 A.2d 516, 528 (1997). If a challenged remark is made in response to the defense‘s closing argument, it will generally be deemed fair response and hence permissible comment. See e.g. Williams, 539 Pa. at 76 n. 13, 650 A.2d at 428 n. 13 (1994), citing Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).
Commonwealth v. Abu-Jamal, 553 Pa. 485, 548-549, 720 A.2d 79, 110 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). As Appellant recognizes, a new trial is warranted if a prosecutor exceeds permissible bounds of advocacy when commenting on counsel‘s defense strategy. See, e.g., Commonwealth v. Raffensberger, 291 Pa.Super. 193, 435 A.2d 864, 870 (1981) (prosecutor exceeded bounds of advocacy by stating, among other things, that “the defense counsel, I believe, is trying to make a fool out of this jury“).
¶ 46 In the instant case, the prosecutor argued that the defense improperly urged the jury to look at one piece of evidence (Officer Rayfield‘s statement that the $10 bill was recovered from Mr. Williams rather than Appellant), rather than the totality of the evidence. N.T. Trial, 10/8/98, at 89. Using a baseball analogy, the prosecutor contended that “looking at one word in the police documents is a Philly Phanatic dancing on that dug-out.” Id. In other words, one discrepancy should not distract the jury from the totality of the evidence, just as a baseball mascot can distract fans from the game. When viewed as a whole, and in the context of the defense‘s strategy, we find that the prosecutor did not exceed the bounds of advocacy so as to “prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict.” Abu-Jamal, 553 Pa. at 548, 720 A.2d at 110. Rather, the remark “constitutes an appeal to the jury to use its collective intelligence and logic in assessing all of the evidence.” Commonwealth v. Smith, 321 Pa.Super. 170, 467 A.2d 1307, 1321 n. 20 (1983). Appellant‘s final claim fails.
¶ 47 As noted above, we find no error with the convictions for conspiracy and possession with intent to deliver. Because Appellant‘s firearms conviction must be vacated, and because this disposition may alter the court‘s sentencing scheme, we remand for a reconsideration of Appellant‘s sentence. Commonwealth v. Fisher, 452 Pa.Super. 564, 682 A.2d 811, 819 (1996), appeal denied, 546 Pa. 691, 687 A.2d 376 (1996).
¶ 48 Judgment of sentence affirmed for possession with intent to deliver and for criminal conspiracy. Judgment of sentence vacated for firearms not to be carried without a license. Case remanded for resentencing. Jurisdiction relinquished.
¶ 49 OLSZEWSKI, J., files a Concurring and Dissenting Opinion.
OLSZEWSKI, J., concurring and dissenting:
¶ 1 While the expression of the majority view provides a persuasive analysis and sound rationale, I am obliged to concur and dissent. I disagree that the court below should have supрressed the firearm because, after much reflection, I feel constrained to interpret the statute by its plain meaning. I therefore dissent on that one issue. On the other issues, I concur with the majority.
¶ 2 The Commonwealth argues that the police legally conducted an inventory search on the vehicle. To show that the search was legal, the Commonwealth must prove two things: (1) “the vehicle [was] lawfully in the custody of the police” and (2) “the search was in fact a search conducted for purposes of protection of the owner‘s property.” Commonwealth v. White, 543 Pa. 45, 669 A.2d 896, 903 (1995). Both prongs are at issue here.
¶ 3 First, appellant‘s vehicle was legally in the custody of the police pursuant to section 3352.
¶ 5 Because the police legally impounded the vehicle, the next question is whether the search was “conducted for the purposes of protection of the owner‘s property.” White, 669 A.2d at 903.
“An inventory search is not designed to uncover criminal evidence. Rather, its purpose is to safeguard the seized items in order to benefit both the police and the defendant. . . .
Four goals underlie such searches. First, they protect the defendant‘s property while he is in custody; second, police are protected against theft claims when defendants are given their property upon release; third, they serve to protect the police from physical harm due to hidden weapons; and fourth, whеn necessary they ascertain or verify the identity of the defendant. Intrusions into impounded vehicles . . . are reasonable where the purpose is to identify and protect the seized items.
As long as the search is pursuant to the caretaking functions of the police department, the conduct of the police will not be viewed as unreasonable under the Constitution.”
Id. at 1176-77 (quoting Commonwealth v. Nace, 524 Pa. 323, 571 A.2d 1389 (1990)). A search is not an inventory search if it “was conducted as part of a criminal investigation.” White, 669 A.2d at 903. On cross-examination, Officer Rayfield testified:
Q. Is that your standard procedure, to remove cars from the front of homes when individuals who are charged with drug activity are arrested inside of homes?
A. If we can ascertain that they own a vehicle, we would take it back with us. Yes.
Q. Even if the person lives at that residence, you would take their car back to the station?
A. At times, depending on the circumstances, yes.
Q. What was it that made you think that, in this particular case, there was any need for safekeeping of this car?
A. The house that we had the search warrant for was almost abandoned. I believe it‘s abandoned now, and your client doesn‘t live in that area.
N.T. Suppression Hearing, 10/6/98, at 90-91. Thе court then found that the officers took the car to safeguard it. See id. at 92, 115. It appears that the officer searched the vehicle as part of his caretaking duties. Thus, this was a valid inventory search. Therefore, I would hold that the court below correctly admitted the weapon found in appellant‘s vehicle.
¶ 6 I do not dissent lightly, and I share the majority‘s fear that, as written, this statute allows the police to impound any
Notes
(a) Definition of conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. . . .
(e) Overt Act.—No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.