Commonwealth v. Peluso

330

1974, adjudicating contempt the order of appellant 15, 1973, imposed a simply fine $100 June any specify actions that did not appellant. The order agency, any his might take or standards might CWS, purge himself. might meet he in order that accompanying the contain opinion order did the Nor rather, specification; and criticized such rigid for “slavish adherence bureaucratic CWS for concern “general lack of humane channels” and 73a.) as this (Opinion children.” Understandable steps take is, it does not tell what criticism comply of June 1973. so as with the order (D.C. Hospital, Cir. In Doe v. General 434 F.2d which a 1970), specified the conditions under the court perform therapeutic hospital required to would be abortions, repeated view the conflicts between “in continuing part on the inaction parties and City Spangler Pasadena hospital.” Id. at And (C.D. 1974), Education, F.Supp. Board Calif. measures which a school board the court ordered obey refusing to an purge contempt for could itself of desegregating specifying procedures the school order personnel. system hiring minority adminstrative specification There was no such here. adjudicating appellant court order lower contempt reversed. P.J., and Hoffman Voort,

Watkins, der Van JJ., concur in the result. Peluso,

Commonwealth September Watkins, J., Submitted 1975. Before P. Jacobs, Hoffman, Cercone, Price, Voort, der Van Spaeth, JJ. Traud, Jr., Defender,

Thomas F. Assistant Public appellant. Makoul, Attorney,

Richard J. Assistant District Joseph, Attorney, Commonwealth, George District J. appellee.

Opinion J., April 22, 1976: Jacobs, January 4, Ray Snyder On home 1972 the G. burglarized. investiga- Seven rifles were taken. In their tion, received information that led them to possession believe that in his least had one of rifles, by. A Weather search warrant was obtained but search failed to uncover Nevertheless, rifles. was still indicted for 1972 “one model 300 weatherbee rifle.” At trial a demurrer was sustained [sic] charge on that because the Commonwealth failed to prove appellant that knew was stolen. An appeal taken the Commonwealth was withdrawn. thereafter, wife, Shortly appellant’s former a divorce having following indictment, been obtained the first brought several rifles that mother her had Two .22 having found. caliber rifles were as identified 334 by. from the residence as the Weather

been stolen same 27, January Appellant then on was indicted 1972, trial the two stolen .22 caliber rifles. At second appellant’s that former wife testified received 27, 1972, and all the rifles at the same time presence that he that had stated in her knew guilty rifles stolen. was found at the were appeal on the second trial. This after conviction second indictment followed. First, appellant appeal,

On several issues are raised. ground jeopardy of raises the defense double as a argument appear an reversal. It would for collateral estoppel appropriate facts of would be under the this However, (no a review of brief oral case. argument case) opinion made in this was lower court convinces us that failed raise the argument estoppel collateral our Court and before arguing lower Instead of collateral before the court. estoppel, appellant’s argument support of double Campana, jeopardy was based on v. 452 Commonwealth 233, remanded, (1973), Pa. A.2d 432 vacated and 304 Pennsylvania Campana, (1973), 414 U.S. 808 adden opinion, 622, Campana, dum Commonwealth 455 Pa. 854, denied, (1974), cert. as 314 A.2d 417 U.S. 969 well Therefore, 110 the Crimes we Code.1 §§109 initially argument estoppel hold collateral Mitchell, Pa. not before us. Commonwealth v. (1975). A.2d argument estoppel

Even if the of collateral raised, application properly we its to the facts of doubt present estoppel simply case. Collateral “means when an issue of ultimate fact has once determined been judgment, again final valid and issue cannot be litigated parties the same future between Swenson, (1971). Ashe v. lawsuit.” 397 U.S. 6, 1972, §1, 18 Pa.C.S. P.L. No. December Act (1973). §§109, 110

However, presented first trial connected the facts at the receiving by only the stolen Weather with 27, January determined The issue of ultimate fact 1972. rifles to the two other at that trial had no reference receiving. Although the appellant was later accused of all received second trial demonstrates time, part not three at the same that evidence was rifles of the first trial. It also true that before the first trial possession police suspected appellant had in his the However, the other stolen rifles. we cannot conclude that fact at the first trial determination of ultimate made regarding finding the stolen as to included receiving not the rifles was accused of presented. which was there no evidence argument We will turn next to the in contained recognized it brief. At first must be applicable and 110 of the Crimes Code not are §§109 present apply the case. The Crimes Code “does prior offenses to the this committed effective date of act prosecutions by governed for such offenses shall be ____” 6, 1972, prior 1482, the law Act of December P.L. No. §2. place

Although present took the offense case Code, the of the Crimes second before effective date following opinion of the trial occurred addendum Pennsylvania Supreme in Commonwealth Court There, (1974). Campana, 455 Pa. 314 A.2d 854 Pennsylvania Supreme “The result this Court stated: entirely Campana opinion] is Court reached [first Code, harmony which with section 110 of our Crimes shortly Id. at effective after our decision.” became Thus, protections set forth in at 856. 314 A.2d Campana specifical- Campana apply present to the case. “any ly reprosecution prohibits the of a defendant arising same or offense based on the conduct was known to the episode, criminal if such offense same time of the appropriate prosecuting officer at trial Crimes Code at commencement of the first ....” §110(1) (Ü).

Looking it now at facts this becomes case back rifles the stolen the offenses of all evident However, place time on took at one prosecuting the time officer at this was not known to prosecutor was first trial. What known First, police that seven rifles known that time? Second, it was residence. someone’s were stolen from by, rifles, Weather found one of these the discovered that Third, police way appellant. the into the hands of its may possessed stolen suspected have other that nothing. a these rifles revealed search for rifles but. support existed, to suspicion there was no evidence While any receiving of against appellant the a case by. fact, of except the result In rifles the Weather not that the Commonwealth did first trial demonstrates against appellant prima facie case even have a by. prosecuting did not Weather officer The appellant had time the first trial know that at the of regard to the other two with committed offense It after first trial rifles. was not until brought rifles and former wife to the the other them with the told them that had received January 27, We not do believe requires a §110(1) (ii) of Code Campana or the Crimes charge at a time prosecutor to an accused with an offense prosecutor only has suspects that offense when the any admissible and has not uncovered been committed by investigation good faith which would evidence support a conviction for that offense.

Appellant argues erred in next that the court below testify permitting to appellant’s former wife as to certain by appellant (that he knew the rifles statements made stolen) presence during marriage. were in her their only testify court Mrs. Peluso as below ruled that could presence to statements made her husband in correctly perceives persons. Appellant’s third brief competency. parties Since the were issue not one prior trial, divorced second Mrs. Peluso became testify competent against Brown, her See husband. Pennsylvania Evidence, However, (1949). the eviden- may tiary testify rule that a husband and wife during confidential made another communications to one marriage remains in force after or even death Hunter, Superior divorce. See Hunter 169 Pa. Ct. rule, (1951). though, apply, 83 A.2d 401 This does not presence when the communication is made in person destroys confidentiality. third which effect its Bishop, (1898). Dumbach v. 183 Pa. A. argues first the communication privately to his wife was first made before it repeated presence person, was in the of a third a John Bonetsky, and therefore wife first learned of this information in a confidential manner. While it is true subsequent that the presence declaration in the others confidentiality does not remove the what first see, Kirk, privately, disclosed Whitehead 104 Miss. 61 (1913), So. 737 it does not follow that later statements presence made in the of others "were also confidential. If freely presence the statements were made in the of a person they third it is product obvious that were of marriage see, Brittain, relationship. the But v. State 117 783, (statement (1895) by N.C. 23 433 S.E. in made wife presence person by of third when coerced husband was case, confidential). present still In the there were no by circumstances to show the statements made appellant presence in Bonetsky the his wife and were private marriage relationship. the argues Bonetsky, also the third person, Peluso, only and not Mrs. the one who could testify to as statements. It is these well established that testify may wife the as to statements made the persons presence during marriage. of third the Dumbach Bishop, supra. properly v. The lower court that the ruled testify by former wife could as to statements made presence in the of others. 338 argument it was error for is that

Appellant’s final charge jury that it need not find the court below to the January 27, by appellant on the rifles were received indictment, they if were 1972, in the the date listed general is ... that time. “The rule on or about received by the is not bound date laid Commonwealth [that] ‘[t]he within can show date in the bill of indictment but statutory finding period prior to the the indictment, except is the essence in cases where time Superior Boyer, Pa. Commonwealth 216 the offense.’” 288-89, 173, quoting 286, (1970) 264 A.2d 175 Ct. 571, 564, Levy, Superior Pa. Ct. Commonwealth v. 97, (1941). of the essence Time considered A.2d presents to the the an alibi defense when defendant Boyer, supra, charged, or is in offense Commonwealth v. way prejudiced set other his defense the date some Swint, indictment. Commonwealth forth See 450, (1976). 350 A.2d 851 Pa. only alleged prejudice from present case

In the charge prosecution is that would have court’s jury of limitations if had been barred the statute January on that the rifles were received or before found 8, 1974, 8, January on Since was indicted necessary to have been committed it was offense 1860, years. prior of March P.L. in the two Act Otherwise, amended, §77, (1964). 19 P.S. §211 untimely according prosecution to the would have been provided act. A review in the above statute limitations testimony that would of the trial record discloses no place stolen rifles the offense of back January 8, testified prior to 1972. Mrs. Peluso on date direct that received the rifles she on cross-examination was unsure but did, however, last She state that it was the exact date. January of rather than the middle of the month. week there was no evidence to indicate that Because place January, possibility early there is no offense took jury could have found that the crime occurred aon date in violation of the statute of limitations. No having prejudice appellant, been shown we are for court convinced that was error below jury instruct the offense could have been on or committed about 1972. reasons, judgment

For above sentence is affirmed.

Dissenting Opinion by Hoffman, J.: Appellant prosecution contends that instant goods was barred the Double Jeopardy Amendment, applicable Clause of the Fifth through the states Fourteenth Amendment. Benton Maryland, (1969). 395 U.S. 784 appellant’s

The facts relevant claim were elicited pre-trial hearings. January 4, 1972, On the residence Ray Snyder Coopersburg burglarized, Subsequently, seven rifles were taken.1 Leslie None- Neimeyer told Detective maker the Allentown Police Department 300-Magnum had sold him a Weatherby Although rifle for the record is not $150.00. entirely clear, apparently gave appellant Nonemaker a check and recorded the serial number his rifle on point, requested checkbook At stub. some Nonemaker receipt, home, but went to the Nonemaker Nonemaker, retrieved the rifle from Mrs. and never against it. The returned checked the serial number Ray Snyder those of the rifles taken from and deter- mined that the weapons. was one of the stolen February 22, 1972, Sandy On Upper Officer of the Department Saucon Police warrant obtained a appellant’s arrest and warrant to search residence. The search warrant listed seven rifles all Snyder sought. taken from the home as the evidence burglary. persons, was never arrested for the Four four, juveniles, three whom were were convicted. None however, implicated appellant ever as a receiver. Sandy fruitless, Officer Although proved the search charging complaint that a criminal swore out 1972, having knowing January 27, or rifle received The Grand that it was stolen. cause to know reasonable indictment, appellant was tried on Jury an returned its presented 23, the Commonwealth April 1973. After appellant’s demurrer.2 The case, sustained the trial court Court, it perfected appeal an to this but Commonwealth appearing not for reasons subsequently withdrawn of record. September police pursue not the case until

The did mother, Helvig, 1973, her Mrs. when Mrs. Peluso and brought to Station. Mrs. five rifles the Allentown Police Helvig police the rifles told the that she discovered cleaning wrapped bedspread, she was the area when gave porch. also a statement underneath Mrs. Peluso police. them that on She informed to Bonetsky, burglars, John one of the later-convicted guns. to sold came their home and her husband several police had Mrs. Peluso also told the that her husband stated, Bonetsky’s presence, were that the rifles stolen. five police rifles The checked the serial numbers two of them had been stolen from and determined Snyder Peluso, however, to was able residence. Mrs. identify only her one of the rifles discovered underneath porch had mother’s as one of the rifles her husband purchased Bonetsky. Jury County Lehigh

The of an Grand returned against charging appellant, “that on the indictment twenty-seventh day January, County said unlawfully receive, Lehigh, the Francis did said Peluso they questioned were never Mrs. Peluso because testify incompetent against In that a wife was to her husband. aware fact, prior to the and Mrs. were divorced two weeks Peluso infra, discussed, testimony As will was crucial to the trial. be her case, testify appellant’s first trial Commonwealth’s and her failure granting major awas reason for the demurrer. another, wit, dispose property or retain moveable scope, .22 rifle Bolt Action with .22 one Weaver and one knowing rifle make Iver Johnson ... it been had believing probably or had been stolen ....” prior trial: that Janet raised two issues testify in- Peluso could made criminating during they time were statements married, Jeopardy and that the Double Clause barred goods. second trial Both were by by jury denied the lower court. was tried guilty. I and found Because believe meritorious, jeopardy double contention I not need properly decide Mrs. whether Peluso was allowed to testify.

Both the lower court our treat Supreme Campana, Court’s decision in Commonwealth v. remanded, (1973), 452 Pa. A.2d 304 432 vacated and Pennsylvania Campana, v. 414 (1973), 808 re U.S. established, Campana, Commonwealth v. 455 Pa. 314 (1974), Campana dispositive. adopted A.2d 854 §1.07(2) of the Model Penal Code as a means of preventing prosecutions: successive shall defendant “[A] subject separate not be multiple trials for offenses arising based on same or conduct the same episode, criminal such are known if offenses appropriate prosecuting officer at the time trial____” 247-248, commencement of the first Pa. at 452 A.2d at It is Campana 304 clear that does rest not requirements, on federal constitutional Com- see Campana, monwealth v. Pa. 455 at 314 A.2d at Pennsylvania is an Supreme but exercise Court’s supervisory power over proceedings. state criminal See Const, V, Pa. art. Whether or facts of the §10. Campana instant case are proscription within the against prosecutions, successive the federal constitution prohibited appellant’s second trial. Swenson,

In Ashe v. (1970), U.S. 436 the United Supreme States estoppel Court held that collateral integral protection part of the is an trials criminal guaranteed Fifth Amend against jeopardy double estoppel “means that collateral The Court stated ment. fact once been simply issue of ultimate has that when an judgment, issue and final valid determined parties litigated again same be between cannot Turner v. U.S. at 443. See also future lawsuit.” 397 Florida, Arkansas, (1972); Simpson 407 U.S. 366 Wingate Wainwright, F.2d 209 (1971); U.S. 384 however, estoppel, can 1972). be Collateral (5th Cir. Campana, only applied in limited circumstances. In our protection Supreme the narrow Court described estoppel faced with affords a defendant collateral imprecise prosecutions: doctrine has successive “That appellate proven quite difficult and burdensome uniformly apply. properly Before the courts estoppel apply the first trial of collateral can doctrine reading acquittal, must and a ‘rational’ end jury its verdict of must disclose based record 246-247, acquittal on but one issue.” 452 Pa. 304 A.2d judgment is previous acquittal the based at 438. When verdict, appellate general court must “examine on a the proceeding, taking into prior account the record the evidence, charge, pleadings, and other relevant matter, jury whether a rational could have and conclude grounded upon its other that which verdict issue than an to seeks foreclose consideration.” defendant Thus, Wingate Wainwright, supra is a v. it rare estoppel be situation which collateral defense will Tramunti, See States v. to defendant. United available 1079; 1974), denied, (2d cert. U.S. 500 F.2d 1334 Cir. Cioffi, (2d 1973), United States 487 F.2d 492 Cir. cert. 995; Fusco, denied, U.S. States 427 F.2d United (7th 1970). Cir. however, difficulty, applying is no collateral There appellant’s estoppel case. At first trial for in the instant rifle, receiving Weatherby the Commonwealth stolen Thus, mainly testimony of Mr. relied Nonemaker. proved the Commonwealth had a rifle been stolen possessed weapon and that had at some point. Code, Under the 1939 Penal the crime of property buys, was defined as follows: “Whoever has, any goods, chattels, money securities, or receives or thing, or other or matter which shall have been feloniously taken, knowing, stolen or having ... or reasonable cause to know the same to have been stolen or feloniously taken, guilty felony Thus, of a ...”3 there possession are three elements the crime: of a stolen having knowing item or reasonable cause know clearly was stolen. The proved Commonwealth that the Weatherby stolen, testimony and Mr. Nonemaker’s possession showed that was in of the rifle. But Thus, the trial court sustained demurrer. only court could have concluded that the Com- prove monwealth’s evidence failed knew or had to know reason been had issue, therefore, stolen.4 That was determined appellant’s favor.5 Commonwealth, however, obtained additional prior trial,

evidence on the scienter issue to the second prepared testify Mrs. Peluso was that her husband had to her that admitted the rifles were stolen. The availability evidence, however, of additional relevant preclude does not estoppel: defense collateral “Certainly where prior an issue has been determined in 1939, 21, 24, 872, §817; May 1943, 306, 3. Act of P.L. P.L. June §1; §4817, superseded by 18 P.S. of Dec. No. Act P.L. §1; 18 Pa.C.S. §3925. dispute opinion, 4. The court lower does this conclusion. In its only “The court stated: first indictment was dismissed because the proven by guns facts the Commonwealth were that several had been point possession (cid:127)stolen at and some in time defendant had been in of the Weatherby. prosecution prove requisite Because the could not the knowledge stolen, gun scienter or the that had been its case was obviously defective.” appeal, the

5. Because Commonwealth withdrew its the demurrer judgment. §110(2). is a valid and final 18 Pa.C.S. See bringing is barred prosecution, the state determina- which a different subsequent prosecution in necessary prove the offense of that issue tion Wainwright, supra The Wingate at 213. charged.” though ad- guarantee applies the even constitutional may prior acquittal that the indicates ditional evidence erroneous. have been Washington, (1971), a bomb

In Harris U.S. Ralph exploded in the home of through the mail sent Burdick, killing son, petitioner’s and Burdick and Initially, estranged seriously injuring wife. petitioner's Ralph petitioner Burdick. was tried for the murder allegedly attempted to introduce letter The state and petitioner which threatened both Burdick written excluded, evidence, however, petitioner’s This was wife. thereafter, Immediately acquitted. petitioner and charged petitioner the murder was rearrested and with trial, At of his son and the assault of his wife. the second petitioner letter was was convicted. admitted Although the same ultimate issue was involved in both i.e., identity prosecutions, person who mailed bomb, Supreme upheld Court the conviction State theory fully litigated on the that the issue had not been prosecution the first the letter had been because Supreme excluded. The United States Court reversed: identity “The State that the ultimate issue of concedes so, jury being first was decided in the trial. That guarantee irrespective applies, the constitutional evidence, jury whether the considered all relevant irrespective bringing the State food faith prosecutions.” (Emphasis successive 404 U.S. at 56-57 added). case, trial trier fact the first instant

In the did know determined therefore, seem, It was stolen. would proving precluded from be Commonwealth would .22 rifles were stolen. appellant knew that two distinguish prosecutions attempted to the two court lower by holding may that the three rifles have been received inevitably at different times: “We do not believe it objects admittedly stolen follows that because were time, they necessarily one were received another at part episode.” general the same time or of a As a same proposition, certainly is true. Under the this statement case, however, impossible facts of the instant authorizing place, sustain. In the first the warrant appellant’s search of residence averred that guns had reason all the taken from Mr. to believe that Snyder possession. Second, appellant’s were in prosecutions allege indictments for both stolen date, items were received the same 1972. Third, testimony important, pre-trial and most - negates any completely possibility Janet Peluso appellant guns received the at different times. She stated Bonetsky gave guns that John all the on the Thus, evening January 27, all the evidence pointed available the lower court to the conclusion that the rifles were received at same time. lower trial, appellant’s court also knew that at first a demurrer granted prove because the Commonwealth failed to knew the Because Weather was stolen. previously that ultimate issue fact was decided favor, precluded the Commonwealth was bringing prosecution second goods aas different determination of that issue was necessary charged. prove the crime

Judgment reversed, of sentence should be discharged. ordered JJ., dissenting join in this Spaeth, Cercone opinion.

Kitzinger Brothers, v. Gimbel Inc.

(et Appellant). al.,

Case Details

Case Name: Commonwealth v. Peluso

Court Name: Superior Court of Pennsylvania

Date Published: Apr 22, 1976

Citation: 361 A.2d 852

Docket Number: Appeal, 1230

Court Abbreviation: Pa. Super. Ct.