Judges: Wieand, Del Sole and Hoffman
Filed Date: 9/4/1991
Status: Precedential
Modified Date: 10/19/2024
This appeal is from the judgment of sentence for receiving stolen property
Appellant was arrested on December 10, 1986 and charged with, inter alia, receiving stolen property, conspiracy, removal or falsification of a vehicle identification number and dealing in vehicles with removed or falsified numbers. These charges were brought in connection with the theft of a Ford pick-up truck and a Buick. On December 4, 1987, appellant filed a motion to dismiss the criminal informations filed against him based on an alleged violation of an existing immunity order.
Appellant next contends that the trial court erred in admitting evidence of appellant’s involvement in a prior car theft because this evidence was irrelevant. Alternatively, appellant claims that, even if this evidence was relevant, its probative value was outweighed by its prejudicial effect.
It is established that evidence of a defendant’s other criminal activity is inadmissible as evidence of his guilt at his trial on other charges. Commonwealth v. Sparks, 342 Pa.Super. 202, 205, 492 A.2d 720, 722 (1985) (citations omitted). Evidence of other crimes may be admissible, however, when it is offered to prove motive, intent, absence of mistake or accident, common scheme or plan, or the identity of the person charged with the crime. Commonwealth v. Martinez, 301 Pa.Super. 121, 125, 447 A.2d 272, 273-74 (1982) (citations omitted). Even if the evidence does fall within an exception to the rule prohibiting proof of prior criminal activity, the trial court must still balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Shealey, 324 Pa.Super. 56, 60, 471 A.2d 459, 461 (1984).
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Secondly, this particular tape, in it is going to make reference to another or different vehicle than the Buick that has been testified to and some incidences [sic] connected with that other vehicle, a Cadillac as a matter of fact.
The purpose of the introduction of this tape and the sound of it is not to imply or infer guilt to this defendant by reference to this other vehicle or the facts connected with it.
In other words, testimony relative to other criminal episodes is not ordinarily admissible at all to show a defendant’s guilt in the crime with which he is charged, as an example, in this trial.
*133 So this transcript, and more particularly the tape, is not introduced to infer from it that this defendant is guilty of this crime by virtue of the references made to the other vehicle and the incidences [sic] connected with it. I want to make that perfectly clear to you. The purpose that the Commonwealth introduces this tape is to show the identity of the defendant by way of the voice and a newspaper clipping reference in it which will be later introduced by the Commonwealth, and it will tie into what they’re trying to do.
So bottom line, rely on what you hear from the tape and not the transcript. It’s simply an aid. And number two, any references to any other criminal episode are of no relevance to you in this case. They cannot be used to establish the guilt of this defendant in this case. That is clearly improper. And thirdly, this tape is intended to establish the identity of the defendant.
N.T. November 21, 1988, at 75-76. Furthermore, before the admission of the redacted version of the newspaper article about appellant, the trial court again cautioned the jury to use that evidence for the limited purpose of establishing appellant’s identity. Id. at 94.
It is undisputed that both the tape and the newspaper article tended to establish appellant’s identity. This evidence corroborated testimony of Trooper Wessel in which he identified the voice on the tape as that of appellant. Thus, this evidence was clearly relevant to prove identity.
Appellant claims that even if this evidence was relevant, its probative value was outweighed by its prejudicial effect. In this regard, appellant claims that his identity was not in issue and, therefore, the probative value of this evidence was outweighed by its prejudicial effect. In light of the importance of the evidence in the context of this trial, as well as the limiting instructions given by the trial judge, we cannot say that the probative value of the disputed evidence was outweighed by its prejudicial effect. Accordingly, we conclude that the trial court did not abuse its discretion in admitting this evidence at trial.
Appellant’s first contention is that counsel was ineffective for failing to object to the Commonwealth’s failure to allege an overt act in the conspiracy counts and for failing to raise this error in post-trial motions. Pa.R.Crim.P. 225(b)(5) provides that, to be legally sufficient, an information must contain “a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint.” Id. Here, the conspiracy informations provided that:
[Appellant] with the intent of promoting or facilitating the commission of the crime of Removal or Falsification of Identification Number, [did] agree with Joseph Cooper, Wilbur James Roles, Sr., Robert Roles and Robert Miller, [ ] that they or one or more of them would engage in conduct, to wit: willfully remove or falsify the identification number of a vehicle, engine or transmission, specifically; willfully remove or falsify the Vehicle Identification Number (VIN) of a 1982 Buick Electra 225 ... which act constitutes said crime----
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SECOND COUNT: ... [Appellant did] agree with [the above-named individuals] that they or one or more of them would ... willfully and with intent to conceal or misrepresent the identity of a vehicle, engine or transmission, remove or falsify the [VIN] on a 1982 Buick Electra 225 ... which act constitutes said crime----
*135 THIRD COUNT: ... [Appellant did] agree with Joseph Cooper and Gary I. Wingard, that they or one or more of them would ... receive, retain or dispose of movable property ... knowing that it had been stolen, or believing that it had probably been stolen____
Information, Criminal Action No. 0030(A) 1987, R.R. at 73a (emphasis supplied).
On its face, this information appears valid and legally sufficient because it charged an agreement, which is the essence of a conspiracy. See Commonwealth v. Hassine, 340 Pa.Super. 318, 359, 490 A.2d 438, 460 (1985) (citing Commonwealth v. Emmi, 290 Pa.Super. 86, 434 A.2d 142 (1981)); 18 Pa.C.S.A. § 903(a). Appellant argues, however, that a distinct overt act must be charged in the information pursuant to 18 Pa.C.S.A. § 903(e), and that, because such an act was not alleged, trial counsel was ineffective for failing to object to the insufficient information. However, Pennsylvania courts have long held to the contrary. See, e.g., Commonwealth v. Hassine, supra, 340 Pa.Superior Ct. at 359 n. 27, 490 A.2d at 460 n. 27; see also Commonwealth v. Breslin, 194 Pa.Super. 83, 165 A.2d 415 (1960); Commonwealth v. Weldon, 159 Pa.Super. 447, 48 A.2d 98 (1946). Accordingly, appellant’s underlying contention is meritless, and counsel cannot be held to have been ineffective for failing to object to the information and failing to raise this deficiency in post-trial motions.
Appellant’s second ineffectiveness contention is that trial counsel should have sought dismissal of one count of receiving stolen property (regarding the Buick), 18 Pa. C.S.A. § 3925, because appellant was also charged with four counts of specific motor vehicle violations under §§ 7102 and 7103 of the Motor Vehicle Code. Appellant argues that he should not have been prosecuted under the general provisions of the Penal Code when there were applicable special penal provisions available.
Section 3925 of the Crimes Code provides that:
*136 (a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
(b) Definition. — As used in this section the word “receiving” means acquiring possession, control or title, or lending on the security of the property.
18 Pa.C.S.A. § 3925.
Section 7102 of the Vehicle Code provides that:
(a) Offense defined. — A person who willfully removes or falsifies an identification number of a vehicle, engine or transmission is guilty of a misdemeanor of the third degree.
(b) Fraudulent intent. — A person who willfully and with intent to conceal or misrepresent the identity of a vehicle, engine or transmission, removes or falsifies an identification number thereof, is guilty of a misdemeanor of the first degree.
75 Pa.C.S.A. § 7102. Section 7103 of the Vehicle Code provides that:
(a) Offense defined. — A person who buys, receives, possesses, sells or disposes of a vehicle, engine or transmission, knowing that an identification number has been removed or falsified, is guilty of a misdemeanor of the third degree.
(b) Knowledge of fraudulent intent. — A person who buys, receives, possesses, sells or disposes of a vehicle, engine or transmission with knowledge that an identification number has been removed or falsified with intent to conceal or misrepresent the identity thereof, is guilty of a felony of the third degree.
Id. at § 7103.
A plain reading of these statutes reveals that they were intended to punish distinct offenses. To convict a defen
Appellant argues, however, that the case of Commonwealth v. Vukovich, 301 Pa.Super. Ill, 447 A.2d 267 (1982), is controlling. In Vukovich, the defendant had presented a forged prescription in order to obtain prescription drugs without a prescription. We held that the defendant was improperly convicted under the forgery section of the Crimes Code in that such conduct was made a misdemeanor by the Pharmacy Act and that the forgery section of the Crimes Code was a general penal provision which had to yield to the special penal provision in the Pharmacy Act. Id., 301 Pa.Superior Ct. at 117-18, 447 A.2d at 269-70. Vukovich is distinguishable. In that case, the precise type
For the above-stated reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
. 18 Pa.C.S.A. § 3925.
. 18 Pa.C.S.A. § 903.
. 75 Pa.C.S.A. § 7102.
. 75 Pa.C.S.A. § 7103.
. On December 4, 1985, one year before appellant's arrest for these charges, appellant had received a grant of immunity from an Allegheny County Court in exchange for his testimony regarding his involvement in a stolen car ring in Pittsburgh.