Appeal from judgment of sentence of Court of Common Pleas of Chester County, May T., 1972, No. 563, in case of Commonwealth of Pennsylvania v. John J. Duffy, Jr.
John Rogers Carroll, with him Robert E. Gabriel, for appellant.
Robert S. Gawthrop, III, Assistant District Attorney, with him F. Ned Hand, Assistant District Attorney, and William H. Lamb, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Spaeth, J.
[ 238 Pa. Super. Page 164]
Appellant was tried by a jury on charges of receiving stolen property, conspiracy to do an unlawful act, compounding a crime, and being a principal in the second degree, accessory, aider and abettor. He was found guilty of conspiracy, but was acquitted of the other charges. Post-trial motions in arrest of judgment and for a new trial were denied, and sentence was imposed. This appeal, which challenges only the denial of the motion for a new trial, followed.
Appellant's first contention is that the trial judge erred in permitting the Commonwealth, on a plea of surprise, to cross-examine and impeach its principal witness.
The charges against appellant arose from events said to have occurred on April 7, 1972. In the late afternoon of that day, appellant, an attorney, was in his office in West Chester, with John Foley, an attorney with whom he shared office space, and Jay Beachem, a client. In the presence of Foley and Beachem, appellant received a telephone call from one Richard Mitchell, also one of appellant's clients, who had just been arrested at the Sears, Roebuck store in St. Davids for attempting to make purchases with a stolen credit card. When Mitchell apparently said that he was calling on a police telephone, appellant asked him to hang up and to call back collect on a pay telephone. A minute or two later appellant's telephone rang again, and appellant answered it. Foley and Beachem overheard appellant's side of the conversation.
The Commonwealth's theory was that in the conversation, through a system of coded question and answers, Mitchell asked appellant, and appellant agreed, to conceal a stolen car, by moving it from the Sears parking lot to another location, and to dispose of any evidence that might link Mitchell to the car. In support of this theory the Commonwealth called Beachem, who testified that
[ 238 Pa. Super. Page 165]
he, appellant, and one Frederick Paup*fn1 did move a car from the Sears lot, wiped fingerprints from its interior, and removed checkbooks and credit cards, a sawed-off shotgun, and burglary tools. Beachem also testified that the ignition of the car was inoperative, so that the car apparently had to be started with a screwdriver. The police officer who later examined the car testified that the ignition had been punched out. Other witnesses testified that the car, the checkbooks, and the credit cards had been stolen.
As regards appellant's knowledge, this evidence was circumstantial. The Commonwealth therefore attempted to prove by direct evidence that appellant knew the car was stolen, but it was frustrated by the testimony of its own witnesses. Mitchell testified that he did not know at the time of his telephone conversation with appellant that the car was stolen. When asked whether he had told appellant the car was stolen, he replied, "I don't know if I did or not." When asked whether he knew the contents of the car were stolen, and whether he had asked appellant to move the car, he replied, "I could have." Beachem, upon cross-examination, specifically repudiated a statement he had given to the police that appellant had told him and Foley that Mitchell's car was "hot" and contained stolen items.
The Commonwealth then called Foley (who it will be recalled, had, along with Beachem, overheard appellant's side of the telephone conversation with Mitchell). Foley had given two oral statements to members of the district attorney's staff.*fn2 In these he had said that appellant had specifically asked during the telephone conversation whether the car was stolen; that later appellant had told him and Beachem that the car was stolen; and that
[ 238 Pa. Super. Page 166]
on the next Monday an unfamiliar shotgun had appeared in appellant's office. However, when the assistant district attorney asked Foley to state his recollection of the events of April 7, 1972, Foley's answers contained no reference whatsoever either to any conversation regarding the ownership of the car or to the appearance of an unfamiliar shotgun. When further non-leading questions also failed to elicit the testimony that the statements suggested would be given, the assistant district attorney turned Foley over to defense counsel for cross-examination.
Upon cross-examination, defense counsel pursued the same avenues of inquiry, eliciting the following information:
"Q. Did you in the conversation with Mr. Mitchell, or any later conversation of Mr. Duffy that day, hear any reference to the fact that the car involved was stolen or hot, as they say?
Q. You mentioned that there were shotguns in the office?
Q. As of April '72, how long have they been there?
A. I never really, you know, looked at them and their description. I just know from time to time we had items belonging to clients in the office, and I know one had been there in particular for quite a long ...