No. 840 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Montgomery County, Criminal Division, C.A. Nos. 2457, 2457.1, 2457.3, 2457.7 and 2457.8 of 1975.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Watkins, President Judge, and Price, J., join.
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Appellant contends that the Commonwealth failed to produce sufficient evidence to convict him of attempted murder,*fn1 felonious restraint,*fn2 kidnapping,*fn3 aggravated assault,*fn4
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robbery,*fn5 recklessly endangering another person,*fn6 theft of movable property,*fn7 possession of an instrument of crime,*fn8 use of a prohibited offensive weapon,*fn9 and criminal conspiracy.*fn10 Appellant also contends that the lower court erred in admitting certain unfairly prejudicial physical evidence and in allowing a Commonwealth witness to testify that appellant elected to remain silent after his arrest. We believe that the Commonwealth produced sufficient evidence to convict appellant on the above charges. However, we grant appellant a new trial because the lower court permitted a Commonwealth witness to testify that appellant elected to remain silent after his arrest.*fn11
From October 28-31, 1975, appellant was tried before a jury in the Montgomery County Court of Common Pleas on the aforementioned charges. The Commonwealth adduced the following facts at trial. Mr. Rigney, a 78 year old man, testified that on May 15, 1975, he drove his 1974 Plymouth Duster into a parking lot at 69th and Walnut Streets in Upper Darby, Delaware County. After parking his car, Mr. Rigney began to read his newspaper. Suddenly, a gun protruded through the window on his left, and another gun appeared through the front passenger window on his right. Two men jumped into the car from both sides, thus sandwiching the victim in between. The two men instructed the victim to remain motionless and to look straight ahead. One of the men said: "You white MF, you're going to die, man." After driving for about 30-45 minutes, they arrived at an isolated spot in the Strawberry Mansion section of Fairmount
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Park in Philadelphia where they stopped the car, ordered the victim to get out, and then locked him into the trunk of the car. The kidnappers resumed their journey. After driving for an additional 30-45 minutes, they arrived at a very remote, wooded area of Upper Merion Township in Montgomery County. At this point, the abductors freed Mr. Rigney from the trunk. A third man, who had joined the two kidnappers sometime during their trip, told Mr. Rigney to put his hands behind his back. As the victim attempted to back away, one of the attackers knocked him to the ground and tied his hands behind his back with white adhesive tape. The assailants then pulled Mr. Rigney to his feet, slipped a noose, made out of a necktie, around his head, and pulled tight. They then led Mr. Rigney to a nearby ravine and pushed him over the edge. As he fell, the victim lost consciousness.
When he regained his senses, the victim discovered that he had fallen only 5 or 6 feet and had come to rest in a plateau area of the ravine. His hands were now free, and the white tape hung from his wrists. He removed the noose and attempted to move. However, nausea overcame him, and he lost consciousness again. Several hours later, he regained consciousness and crawled out of a ravine onto an adjacent road. A passerby found Mr. Rigney and called the police and an ambulance.
The passerby and the attending police officers testified that Mr. Rigney had been severely beaten; his face was swollen, deformed and black and blue. His forehead had a deep gash, and blood covered his face and neck. His hands were similarly cut, bloody, and discolored. Ticks infested exposed areas of his skin. The victim gasped and had extreme difficulty breathing. According to Mr. Rigney, he suffered permanent loss of hearing in one ear. Moreover, he testified that the assailants removed his 16 year old Timex wristwatch, his car, his keys, and his wallet with his vehicle registration card.
A police officer testified that on May 17, 1975, two days after the sordid attack, he spotted the victim's car in an area
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near the scene of the abduction. Appellant entered the car and drove off. The police officer stopped appellant and questioned him. Appellant told the police officer that he did not have a driver's license and that he had borrowed the car from a friend. When appellant could not produce a registration card, the police officer arrested him. At the police station another police officer questioned appellant about his possession of the victim's car. Appellant changed his account and asserted that on May 16, 1975, he found the car parked along the street with the keys in it and decided to take it for a ride. Appellant then elected to remain silent. Police officers also testified to a search of appellant's person and the victim's car. On his wrist, appellant wore the victim's 16 year old Timex watch. When questioned as to how he came into possession of this watch, appellant responded that he had purchased the watch, brand new, six months earlier. The police also found the victim's automobile registration card in appellant's wallet. The search of the victim's car disclosed the following items: several rolls of white adhesive tape of the same nature used in the attack, a gun, a letter addressed to appellant, several books marked with appellant's name, and many pieces of appellant's personal clothing.
On October 31, 1975, the jury returned guilty verdicts on all charges. At appellant's behest, his counsel made and argued oral post-verdict motions on the record at the conclusion of trial. See Pa.R.Crim.P. 1123(b); 19 P.S. Appendix. After denying the post-verdict motions, the lower court sentenced appellant to two consecutive 10-20 year terms of imprisonment on the kidnapping and attempted murder charges and one concurrent 10-20 year term of imprisonment on the robbery charge. This appeal followed.
Appellant first contends that the Commonwealth did not adduce sufficient evidence to prove beyond a reasonable doubt that he committed the crimes charged. In particular, appellant asserts that the only evidence linking him to the May 15, 1975 events was his possession of property stolen from the victim. "In determining whether the evidence is
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sufficient in law to prove that a defendant is guilty beyond a reasonable doubt, of the crime or crimes charged, we must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all reasonable inferences arising from the evidence, upon which the trier of facts could properly have based the verdict. Commonwealth v. Malone, 444 Pa. 397, 281 A.2d 866 (1971); Commonwealth v. Petrisko, 442 Pa. 575, 275 A.2d 46 (1971)." Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974). We must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Newkirk, 455 Pa. 559, 317 A.2d 216 (1974). Moreover, a conviction may be based solely upon circumstantial evidence sufficient to prove a defendant's participation in the crime charged beyond a reasonable doubt. Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973).
In the instant case, the Commonwealth presented sufficient circumstantial evidence to support the jury's guilty verdicts. The police found appellant driving the victim's car near the scene of the abduction within 48 hours of the crimes. When questioned, appellant proffered two false and contradictory accounts of his possession of the car. The police found the victim's 16 year old Timex watch on appellant's wrist; when questioned as to his possession of this item, appellant responded with a patent falsehood. The police also found the victim's registration card in appellant's wallet. A search of Mr. Rigney's car disclosed several rolls of white adhesive tape of the same type used to bind Mr. Rigney's hands and a gun. The police also found several of appellant's personal possessions in the car. We believe that this evidence, when considered in its totality, sufficiently links appellant to the commission of the reprehensible crimes of May 15, 1975.
Appellant next alleges that the Commonwealth did not produce sufficient evidence of possession of an instrument
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of crime in Montgomery County.*fn12 The lower court summarized the pertinent evidence on this issue and refuted appellant's contention: "There was direct testimony that [a gun] was there at the scene of the abduction, and later, that the outline of it was observed in the pocket of one of the abductors. A gun was found in the victim's car when defendant was picked up. It would be folly to imagine that the gun had not gone along with the men to Montgomery County on this entire nefarious venture, and that it did so was not an unreasonable inference for the jury to have drawn. The Commonwealth is entitled to all reasonable inferences arising from the evidence." Commonwealth v. Thomas, 459 Pa. 371, 329 A.2d 277 (1974); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971). We concur with the lower court's analysis and likewise reject appellant's claim.
Appellant next contends that the trial court committed reversible error in allowing a Commonwealth witness to testify that appellant elected to remain silent after his arrest. We ...