DocketNumber: 982
Judges: Van Voort, Hester, Wieand
Filed Date: 4/25/1980
Status: Precedential
Modified Date: 10/19/2024
Allen Whitner was tried before a jury and convicted of robbery,
A subpoena, which had been issued to “Alan Whitman”, was observed on the front seat of the vehicle. Police records disclosed that “Alan Whitman” was in fact Allen Whitner. Whitner was also identified by Kretovich from police photographs. A warrant was issued for Whitner’s arrest and he was taken into custody. He thereupon gave an inculpatory statement in which he admitted participating in the assault and robbery of Kretovich.
This evidence was clearly sufficient to support the guilty verdicts returned by the jury. Appellant’s motion in arrest of judgment, therefore, was properly denied.
The complaint against appellant was filed on February 18, 1977. The original run date, in the absence of exclusions, was August 17, 1977. Two periods, however, were excluded by the trial court. The first period of exclusion allowed by the court was attributable to appellant’s unavailability from March 8, 1977 to April 19, 1977, because of hospitalization. Delay caused by appellant’s hospitalization is properly excluded. Commonwealth v. Millhouse, 470
An additional exclusion occurred because of a continuance granted at appellant’s request from July 19, 1977 to August 29, 1977. This continuance, being for a period of forty-one days, resulted in an exclusion of eleven days. Pa.R.Crim.P. 1100(d)(2). The suppression hearing, which had been reserved until time of trial, commenced on August 26, 1977. It was concluded on October 5, 1977, and jury selection commenced immediately thereafter.
Trial, under these circumstances, commenced on August 26, 1977, the day on which the court started to take testimony on appellant’s pre-trial suppression motion. Commonwealth v. Kluska, 484 Pa. 508, 399 A.2d 681 (1979); Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977). This was well within the time allowed by Rule 1100.
A pre-trial motion to suppress appellant’s confession was denied by the court below, which rejected appellant’s assertions of police brutality and found that his confession had been given voluntarily. Our duty on review is to determine whether the record supports the findings of the court below. We must also determine the legitimacy of the inferences and legal conclusions drawn from the evidence. Commonwealth v. Hunt, 263 Pa.Super. 504, 398 A.2d 690 (1979). In making these determinations we consider only the Commonwealth’s evidence and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Hunt, supra. From a review of the record in the instant case, we conclude that the finding of the suppression court was supported by the evidence. The conflict in the evidence was for the factfinder. Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977); Commonwealth v. Washington, 259 Pa.Super. 407, 393 A.2d 891 (1978).
Appellant also contested the voluntariness of his confession during the jury trial. He complains that the trial court refused a point for charge to the effect that involuntary confessions are inherently untrustworthy. A trial court, however, is not required to affirm all requested instructions, even though the statement of law contained therein be correct. Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975). It is free to use its own form of expression so long as it adequately, accurately, and clearly explains the principle of law for the jury. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). In the instant case the trial judge clearly and unequivocally told the jury that if appellant’s confession had been given involuntarily, no consideration could be given to it. The charge, considered in its entirety, was a correct statement of the law. Appellant was not prejudiced by the failure of the trial judge to charge in precisely the same words contained in the requested point for charge. See: Commonwealth v. Gray, 473 Pa. 424, 374 A.2d 1285 (1977); Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977).
Appellant also contends that his trial counsel
Appellant also claims that due process was violated by the failure of the Commonwealth to turn over information concerning the arrest of Officer Cashman to appellant. This issue was not raised in post trial motions and, therefore, will not be considered on appeal. Commonwealth v. Twiggs, 485 Pa. 481, 402 A.2d 1374 (1979); Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979).
Appellant next argues that he was prejudiced by the introduction into evidence of the subpoena found on the front seat of the vehicle from which the suspects had fled. This evidence, he contends, disclosed to the jury that he was suspected of being involved in prior criminal activity. The Commonwealth’s evidence established that the subpoena had not been in the car prior to the assault on Kretovich. Its presence after the assailants had fled in and subsequently abandoned the commandeered vehicle was highly probative of the identity of one of the men. As such, it was properly received. Evidence of prior criminal activity becomes admissible to show (1) motive; (2) intent; (3) absence of accident or mistake; (4) a common plan, scheme or design; or (5) to establish identity of the person charged. Commonwealth v. Rose, 483 Pa. 382, 399-400, 396 A.2d 1221, 1230 (1979); Commonwealth v. Peterson, 453 Pa. 187, 197-98, 307 A.2d 264, 269 (1973). Moreover, the trial judge carefully admonished the jury when the evidence was received and again during final instructions concerning the limited purpose for which the evidence had been received. We perceive no error.
In Commonwealth v. Butler, 405 Pa. 36, 46 — 47, 173 A.2d 468, 473-74 (1961), our Supreme Court stated:
It has been the law in Pennsylvania for decades that whenever a witness or a defendant takes the witness stand, his testimony may be impeached by showing prior convictions of felonies or misdemeanors in the nature of crimen falsi .
This rule of evidence is founded on common sense and logic. If a defendant offers himself as a person worthy of belief, the jury has the right to know what kind of man he is — to aid in assessing his credibility. His previous record is admissible for this purpose just the same as testimony of prior reputation for veracity is evidence for the jury’s consideration.
In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), the Supreme Court indicated that the admissibility of evidence of prior convictions for impeachment purposes should not turn solely on the nature of the prior convictions, but rather the trial courts should exercise discretion and consider the following additional factors: age of the prior crimes, length of criminal record, age and circumstances of the defendant, and “the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.” Bighum, 452 Pa. at 567, 307 A.2d at 263. The Supreme Court in Bighum placed the burden on the appellant to demonstrate on appeal an abuse of discretion by the trial judge.
In Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), the Supreme Court emphasized that Bighum had rejected a per se rule of admissibility of convictions for
In the case before us, there is no indication in the record, and appellant does not allege, that the lower court erroneously placed the burden of proof on appellant, and we find that appellant has not demonstrated an abuse of discretion on the part of the lower court.
Appellant’s prior convictions were for crimes involving dishonesty, and ranged in time from 1971 through 1977, indicating that appellant’s propensity for dishonest conduct extended over an extended period of time and continued up to the time of trial on these charges. Appellant wished to attack the voluntariness of his confession by testifying that the police had beaten him to obtain the confession, which meant that the trier of fact would have to choose whether to believe appellant’s story that the confession had been obtained from him forcefully, or the police version that the confession had been given by appellant voluntarily.
Having found no merit to appellant’s arguments, we affirm the judgment of sentence.
. 18 Pa.C.S. § 3701(a)(l)(i), (iv), (v).
. 18 Pa.C.S. § 3928.
. 18 Pa.C.S. § 903.
. 18 Pa.C.S. § 907(a).
. 18 Pa.C.S. § 2902.
. 18 Pa.C.S. § 2701.
. 18 Pa.C.S. § 2702(a)(1) and (4).
. Appellant is represented by new counsel on this appeal.
. The record of the arrest attached to appellant’s brief shows that Cashman was found not guilty.
. The court also included an illustrative list of the factors to be considered by the lower courts: “1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.” 482 Pa. at 39-40, 393 A.2d at 367.
. See Commonwealth v. Phillips, 272 Pa.Super. 16, 414 A.2d 646 (1979), wherein the prosecution had available a witness other than
. See Roots in which the defendant had been caught red-handed, and his testimony was critical to his defense that he did not intend to commit a crime in the building. The Supreme Court in that case held that the need to hear the defendant’s story was “compelling” when compared with the prejudice that would result from the jury’s knowledge of appellant’s criminal record. In Roots, the defendant’s single prior offense had occurred five years previously.