Commonwealth v. Whitner, 420 A.2d 486

Commonwealth v. Whitner

420 A.2d 486

Pa. Super. Ct.

1980

Check Treatment

*4 VOORT, WIEAND,* JJ. Before VAN der HESTER VOORT, Judge: VAN der and convicted

Allen was tried before Whitner automobile,2 con- use of an criminal robbery,1 unauthorized crime,4 re- unlawful spiracy,3 possession instruments On this straint,5 assault.7 simple aggravated assault6 and averments of error. direct he makes several appeal, * designation. sitting by special Judge Donald E. Wieand is 3701(a)(l)(i), (iv), (v). 18 § 1. Pa.C.S. 18 3928. §

2. Pa.C.S. §

3. Pa.C.S. 903. 907(a). §

4. Pa.C.S. 2902. §

5. Pa.C.S. §

6. 18 Pa.C.S. 2701. 2702(a)(1) § Pa.C.S. *5 1977, February 17, A.M., On at or about 1:00 Paul Kreto- entering vich was his parked approached car when two men men, side the driver’s of his vehicle. One of the Vanders Richardson, pulled open the door struck Kretovich and sever- man, al times on the head with a A gun. second Allen Whitner, entered the passenger’s side so as to sandwich Kretovich between him and Richardson. Richardson passed gun the to Whitner drove away Kretovich’s car. blindfolded, taken, Kretovich was his wallet was was and he ejected onto the approximately sidewalk three blocks from where he had been he by accosted. There was found a police officer, who took him from immediately broadcast of descriptions the vehicle and the occupants. Another broadcast, officer heard the sighted vehicle and made an car, attempt stop however, to it. The of occupants stop refused off high speed. and drove at a rate of When car, finally the officer overtook the he found the occupants running gone, open. motor and the doors A subpoena, Whitman”, which had been issued to “Alan was observed on the front seat of the vehicle. Police records disclosed that “Alan Whitman” inwas fact Allen Whitner. Whitner was also by police identified Kretovich from photo- graphs. A warrant was issued for Whitner’s arrest and he thereupon was taken He custody. gave into an inculpatory statement in which he admitted the assault participating robbery Kretovich.

This evidence clearly was sufficient support guilty by jury. verdicts returned Appellant’s motion in therefore, judgment, arrest of was properly denied. complaint The against appellant was filed on Febru 18, date, ary original The 1977. run in the absence 17, exclusions, August however, Two periods, were excluded the trial period court. first of exclu sion allowed the court was to appellant’s attributable April from March 1977to unavailability because hospitalization. Delay by appellant’s caused hospitaliza Millhouse, is properly tion excluded. Commonwealth v. (1977); Quinlan, Pa. Commonwealth v. *6 536, (1978); Pa.Super. 259 393 A.2d 955 Commonwealth v. 17, Haynes, Pa.Super. (1976). 369 A.2d 271 An additional exclusion occurred because of a continuance granted 19, from appellant’s request July August at 1977 to 29, continuance, being 1977. This for a period forty-one in days, resulted an exclusion of eleven days. Pa.R.Crim.P. 1100(d)(2). suppression hearing, which had been re- trial, 26, served until time of August commenced on 5, 1977, It was concluded on October jury selection commenced immediately thereafter.

Trial, circumstances, under these commenced on Au 26, 1977, gust day which the court started to take testimony on appellant’s pre-trial suppression motion. Kluska, 508, Commonwealth v. (1979); 484 Pa. 399 A.2d 681 Wharton, 25, Commonwealth v. Pa.Super. 378 A.2d 434 (1977). This was well within the time allowed by Rule 1100.

A pre-trial motion to suppress appellant’s confes below, sion was rejected denied the court which appel lant’s assertions police and found that his brutality con fession had been given voluntarily. Our on review is to duty determine whether the record supports findings of the court below. We must also determine the legitimacy of the legal inferences and conclusions drawn from the evidence. Hunt, 504, Commonwealth v. 263 Pa.Super. 398 A.2d 690 (1979). In making these determinations we consider only the Commonwealth’s evidence and so much of the evidence as, for the defense fairly read the context of the record as whole, remains uncontradicted. Commonwealth v. Good win, (1975); 460 Pa. 333 A.2d 892 Commonwealth v. Hunt, supra. From a review of the record the instant case, we conclude that the finding suppression court supported evidence. The conflict in the evidence Grace, was for the factfinder. Commonwealth v. 473 Pa. (1977); 375 A.2d 721 Commonwealth v. Washington, court’s con supports suppression The record also cause for arrest. probable clusion that there was subpoena found on the front identifying was the only Not crime, from which he fled after the but of the vehicle seat identified as one of the at positively victim photographs. police tackers from of his also contested the voluntariness Appellant trial. He that the trial during complains confession charge to the effect that involun point court refused a A trial inherently untrustworthy. are tary confessions however, to affirm in court, required requested is not all structions, contained though even the statement law McComb,462 Pa. therein be correct. Commonwealth v. *7 is free to use its own form of (1975). 341 A.2d 496 It adequately, accurately, clearly as it expression long so jury. of law for the Commonwealth v. explains principle 116, the instant Perkins, (1977). Pa. 373 A.2d 1076 In 473 jury told the judge clearly unequivocally case the trial given involuntarily, confession had been appellant’s that if charge, The con given consideration could be to it. no was a correct statement of the law. entirety, sidered in its was the failure of the trial Appellant prejudiced not in the charge to in the same words contained judge precisely Gray, v. point charge. See: Commonwealth requested 424, (1977); A.2d 1285 v. 473 Pa. 374 Commonwealth Hen derson, 472, (1977). 249 378 A.2d 393 Pa.Super. counsel8 also contends that his trial

Appellant failing investigate background ineffective for to was Cashman, who, it is interrogating one of the officers Officer arrested for assault.9 previously simple had been alleged, for assault irrelevant to The fact of Cashman’s arrest was this case. Prior arrests which have not in inquiry conviction, moreover, impeach in cannot be used to resulted 604, Jackson, 381 A.2d Commonwealth v. 475 Pa. a witness. appeal. Appellant represented is new counsel on this shows that record of the arrest attached to brief 9. The guilty. Cashman was found not

183 564, v. 475 (1977); Taylor, Commonwealth Pa. 381 A.2d 438 Katchmer, 461, v. 453 Pa. 309 (1977); Commonwealth appellate The courts have stated (1973). repeated- A.2d 591 failing cannot be held ineffective for ly that counsel lacks an issue which Commonwealth v. pursue merit. Holmes, (1978); 393 A.2d v. 482 Pa. Commonwealth Hubbard, (1977). Appellant’s 472 Pa. 372 A.2d 687 trial counsel, arrest, if he have even had learned of the would not it to to show impeach been able use Officer Cashman or that he had abused in order to obtain a confession. finding There is no basis for counsel ineffective. claims that due violated

Appellant process also was the Commonwealth to turn over informa by the failure of concerning appellant. tion the arrest of Officer Cashman to and, therefore, post trial motions This issue was not raised Twiggs, appeal. will not be considered Commonwealth Turner, (1979); A.2d 1374 Commonwealth v. 485 Pa. argues prejudiced by next that he was Appellant found on the subpoena introduction into evidence of the had suspects front seat of the vehicle from which the fled. contends, evidence, disclosed to the that he was This he being prior activity. involved criminal suspected established that subpoena Commonwealth’s evidence had not been in the car to the assault on Kretovich. Its had fled in presence subsequently after the assailants vehicle highly probative abandoned the commandeered *8 such, of the men. As it identity properly of the of one prior activity received. Evidence of criminal becomes ad intent; motive; (1) (2) (3) missible to show absence of mistake; (4) a common scheme or plan, design; accident or (5) identity person charged. or to establish Common 382, 399-400, 1221, Rose, wealth v. 483 Pa. 396 A.2d Peterson, 187, 197-98, 307 (1979); Commonwealth v. 453 Pa. Moreover, 264, the judge carefully A.2d trial when the evidence was received and jury admonished the again during concerning pur final instructions the limited perceive for which the evidence had been received. We pose no error. the lower court erred is that argument final

Appellant’s if hearing) that an in camera ruling (following its evi- could introduce trial, the Commonwealth at testified theft, receiving convictions for prior dence of desired to burglary. Appellant robbery, property, stolen extrac- brutality in the purported police to testify solely as confession. tion of his Butler, 36, 47, 173 A.2d v. 405 Pa.

In Commonwealth 46— our Court stated: (1961), Supreme 473-74 Pennsylvania the law in for decades that It has been witness or a defendant takes the witness whenever a stand, impeached showing prior be testimony may his or misdemeanors in the nature of convictions of felonies crimen falsi . sense and evidence is founded on common

This rule of of person worthy offers himself as a logic. If a defendant belief, know what kind of man he right the has the jury previous His record assessing credibility. aid in his is—to just testimony the same as purpose is admissible for this jury’s is evidence for the veracity prior reputation consideration. 452 Pa. 307 A.2d 255 Bighum, v.

In Commonwealth admissibility Court indicated that (1973), Supreme impeachment purposes convictions for prior evidence of convictions, prior the nature of the solely should not turn on exercise discretion and rather the trial courts should but age prior additional factors: following consider the record, circumstances of crimes, age criminal length of defendant, important it is more and “the extent to which a case for the particular for truth in to the search convic- than to know of a story hear the defendant’s at 307 A.2d at 263. The 452 Pa. Bighum, tion.” on the Bighum appel- the burden Supreme placed Court abuse of discretion appeal an lant to demonstrate judge. trial Roots, 482 Pa.

In Commonwealth Bighum had emphasized (1978), Supreme Court of convictions for admissibility se rule of rejected per *9 to limit the admis- dishonesty, in an effort involving crimes such in which the evi- of such evidence to situations sion value to the evidentiary prosecution dence was of essential unfair to the defense.10 The unreasonably and was not court had erred in Court found that the lower Supreme the burden of on the defendant instead placing proof that its need for requiring prosecution the to demonstrate prejudice for inherent outweighed potential the evidence the in the evidence. record, us, is no indication in the

In the case before there the lower court allege, and does not that errone- appellant and we find ously placed proof appellant, the burden of not an abuse of discretion that has demonstrated on the lower court. part of the involv

Appellant’s prior convictions were crimes ing dishonesty, ranged through time from 1971 indicating appellant’s for dishonest conduct propensity period up extended over an extended of time and continued to the time charges. Appellant of trial on these wished to attack the voluntariness of his confession testifying that confession, police had beaten him to obtain the which meant that the have to choose trier fact would whether to believe that the confession had been obtain story forcefully, police ed from him or the version that the confes sion given by appellant had been Under the voluntarily.11 10. The court also included an illustrative list of the factors be “1) degree considered the lower courts: to which the commis- upon veracity sion of the offense reflects of the defendant- witness; likelihood, 2) the in view of the nature and extent of the prior record, greater tendency that it would have a to smear the suggest propensity character of the defendant and crime for which he a to commit the charged, provide legitimate than stands rather 3) discrediting person; age reason for circumstances of the case and the pared him as an untruthful defendant; 4) strength prosecution’s prosecution’s need to resort this evidence as com- availability through with the to the defense of other witnesses surrounding which its version of the events the incident can be presented; 5) attacking the existence of alternative means of 39-40, credibility.” defendant’s 482 Pa. at 393 A.2d at 367. Phillips, See Commonwealth v. (1979), prosecution wherein the had available a witness other than

circumstances, important it was for the to be able to adequately convictions in order to appellant’s prior consider appellant’s credibility.12 assess we af- Having appellant’s arguments, found no merit to of sentence. judgment firm the WIEAND, J., concurring dissenting opinion. files a WIEAND, Judge, concurring dissenting: discussed, agree hereinafter I exception, fully With one disposition by appel- with the of the issues raised majority’s disposi- with the myself disagreement solely lant. I find in that he was unnec- appellant’s argument prejudiced tion of ruling testify the trial court’s that if he elected to essarily by permitted the Commonwealth would be to attack his credi- theft, showing robbery, various convictions for bility by receiving occurring stolen between burglary property prior 1971 and 1977. The use of convictions to attack a received credibility thorough defendant’s has consideration The Supreme given in recent decisions of Court. reason case, moreover, its ruling the trial court for this has for rejected proper receiving prior been as a basis convic- an of this Because the issue is no opinion tions Court. one and because under similar circumstances longer open an by permit- a trial court has been held to abuse its discretion convictions, I ting prior respectfully evidence of must dis- sent. shortly police, who had observed the defendant after the time of allege beatings any and who had observed no indications of such

the beatings. three-judge panel Two members our court conclud- ruling ed that the lower court had abused its discretion prior certain impeachment purposes appel- convictions admissible for should lant take stand. red-handed, caught 12. See Roots in which the defendant had been testimony to his defense that he not and his commit a crime in the was critical did intend to building. Supreme The Court in that case held story “compelling” that the need to hear the defendant’s when compared prejudice jury’s with the that would result from the knowl- Roots, edge prior single In criminal record. the defendant’s years previously. offense had occurred five permit whether to correctly observes majority within the discre- is impeach credibility convictions prior however, discretion, must be That trial court. tion of the Williams, v. Commonwealth meaningful way. in a exercised convictions (1980). Prior 389, 417 A.2d 704 defendant credibility of a attack the received to not be may showing that the the burden of meets prosecution unless potential its inherent overcomes such evidence need for Roots, 33, 41, A.2d 482 Pa. Commonwealth prejudice. decision, were trial courts In the Roots “1) to which following: degree to consider the directed the veraci- upon offense reflects of the the commission defendant-witness; likelihood, in view of 2) the *11 ty record, it would have prior of the that and extent the nature the character of the defendant to smear greater tendency a commit the crime for which he to suggest propensity a reason for provide legitimate rather than a charged, stands 3) age the person; him as an untruthful discrediting defendant; of the 4) strength the circumstances need to resort to this prosecution’s and the case prosecution’s to the defense of availability with the compared evidence as of events which its version the through witnesses other 5) the can be presented; the incident surrounding the defendant’s attacking means of existence of alternative credibility.” case, prior court concluded that the the trial

In the instant which testimony be received because the should convictions to the collateral issue of give only to went wished appellant The issue was of his confession. same voluntariness the Phillips, in Commonwealth v. Superior Court before J., (WIEAND, dissenting). (1979) voluntari- challenge to appellant sought also There a trial court This Court reversed ness of a confession. theft, conviction for prior have allowed a ruling which would testifying from ruling prevented appellant holding that sign and tortured and forced he been beaten that had confession. Williams, supra,

Commonwealth is also instructive. general defense was a denial. We appellant’s only There of the number of these convictions and “[bjecause concluded being for which similarity charge appellant their tried, this evidence would have tended to smear the charac- ter of the to such an extent that an unbiased and appellant innocence would have impartial guilt determination of or impossible. if not The improbable relevancy been rendered therefore, appellant’s credibility, evidence to attack this Id., by propensity prejudice.” was overshadowed its Pa.Super. at 417 A.2d at 705. case, prior in the instant the series of convictions was

So that, them, apprised such had the been an unbiased or have been ren- guilt determination innocence would if not of attainment. improbable, impossible, dered failed to demonstrate the need Commonwealth potential for this evidence overcame its inherent for preju- dice. The had available to it substantial Commonwealth prove appellant’s guilt. means which to In addition to confession, positively had been identi- fied the victim and had identified himself by leaving his name on the front seat of victim’s car when he aban- it police pursuit. Appellant’s doned in the face of convictions, therefore, which, had a limited if relevancy *12 received, destroyed appellant’s would have opportunity for jury. trial before an unbiased The trial court’s ruling effec- tively prevented appellant testifying from on his own behalf. case, therefore, of this Under circumstances I am con- strained to conclude that it was an abuse of discretion to convictions admissible to hold attack credi- bility.