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COMMONWEALTH v. WATKINS (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
WATKINS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Beaver County, Nos. 426 and 427 of 1974, in case of Commonwealth of Pennsylvania v. Winifred Watkins.

COUNSEL

John P. Dohanich, Assistant Public Defender, for appellant.

Joseph M. Stanichak, Assistant District Attorney, and Joseph S. Walko, District Attorney, for Commonwealth, appellee.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 239 Pa. Super. Page 146]

This appeal arises from appellant's conviction after a jury trial of two counts of forgery and two counts of theft by deception. In her appeal appellant argues that she is entitled to a new trial because: (1) the proof at trial did not conform to the allegations in the indictment; (2) inadmissible hearsay evidence was used to explain inconsistencies in the identification testimony proffered by the Commonwealth; and, (3) the in-court identification was tainted by an illegal out-of-court confrontation between appellant and the Commonwealth's witnesses. We find no reversible error with respect to these claims, and we will affirm the judgments of sentence. The facts are as follows:

On March 11, 1974, two black females, posing as Joan Bennett and Jeannie Moffatt, cashed a total of four stolen and forged payroll checks at two branch offices of Mellon Bank in Beaver County. The two bank tellers who handled the transactions did so with appropriate circumspection. Although the drawee bank was not Mellon Bank, both "Joan Bennett" (subsequently identified as appellant herein) and Jeannie Moffatt (subsequently identified as appellant's sister), alleged to have accounts with Mellon Bank, and supplied account numbers and driver's licenses in the names of their aliases as identification. In each case the checks were made out for less than two hundred dollars, obviating the

[ 239 Pa. Super. Page 147]

    policy of Mellon Bank to have management approval of checks for larger sums. Since both tellers were mildly suspicious and did not hurry the transactions, they both had from five to ten minutes to observe the women. That opportunity proved useful at all stages of the proceedings below, since the bank tellers, Mary Ann Woods and Bonnie Kowalchuck, recalled and were able to identify and describe with precision the stature, attire, demeanor and hair color of appellant and her sister. As the evidence at trial demonstrated, appellant and her sister forged checks on many occasions in Allegheny County, for which offenses both were convicted in state and federal courts. Indeed, appellant's sister, who pleaded guilty to the instant offenses, testified that it was not uncommon for them to spend an entire day visiting various banks and cashing stolen and forged checks using these same aliases.*fn1

Appellant contended at trial that prior to March 11, 1974, her sister and she had a serious argument and were not speaking to each other, let alone doing their banking together. Appellant's sister testified that she and another girl, whose name she could not remember, cashed the checks in the instant case, and that appellant was not with her. Appellant also testified and admitted her involvement in a continuing scheme of forgeries with her sister using the names Joan Bennett and Jeannie Moffatt. Obviously, despite the exculpatory evidence, the circumstantial evidence of this on-going forgery scheme, and the solid, unshakeable testimony of Mrs. Woods and Mrs. Kowalchuck identifying appellant, amply supported the jury's verdicts of guilty.

Appellant first argues that the lower court erred in permitting the Commonwealth to amend, at trial, the alias to which the indictment referred in setting forth the facts of the instant forgeries. Apparently, at the

[ 239 Pa. Super. Page 148]

    preliminary hearing when the real names of the culprits were initially disclosed to Mrs. Woods and Mrs. Kowalchuck, the witnesses confused the aliases that appellant and her sister had used, so that appellant's indictment erroneously charged her with posing as Jeannie Moffatt.*fn2 At the suppression hearing and again at trial, however, both ladies unequivocally identified appellant, who was much stouter than her sister, as having used the Bennett alias. The witnesses were certain of this because "Joan Bennett" was the one with whom both ladies principally ...


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