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COMMONWEALTH PENNSYLVANIA v. RICKEY MCLEAN (07/06/79)

SUPERIOR COURT OF PENNSYLVANIA


July 6, 1979

COMMONWEALTH OF PENNSYLVANIA
v.
RICKEY MCLEAN, APPELLANT

No. 898 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, Mercer County at No. 260 Criminal, 1977.

Before Price, Hester and Montgomery, JJ.

Per Curiam

Judgment of sentence affirmed on opinion of Judge Acker.

PRICE, J., filed a dissenting opinion.

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA CRIMINAL

COMMONWEALTH vs. RICKIE McLEAN

No. 260 Criminal 1977

APPEARANCES

Samuel J. Orr, IV., District Attorney

David B. Douds, Assistant District Attorney For the Commonwealth

Warren R. Keck, III, Attorney at Law For the Defendant

ACKER, J.

This Court has for consideration a motion for new trial and a motion in arrest of judgment. The defendant was convicted of conspiracy to commit robbery through physically taking or removing property from the person of another by force, however slight.*fn1

This case concerned the robbery of the Western Union office in the Sharon Towne Plza, Sharon, Pennsylvania, on February 16, 1977. Defendant was tried alone upon charges of robbery through infliction of serious bodily injury upon another [18 Pa. C.S.A. 3701(a)(i)]; robbery through inflicting bodily injury upon another [18 Pa. C.S.A. 3701(a)(iv)]; and robbery through physically taking or removing property from another by force, however slight [18 Pa. C.S.A. 3701(a)(v)]. The jury failed to return a verdict of guilty or not guilty on the first two charges.

The testimony of the victim, Vivian Seiple, disclosed that she was working at her desk in the Western Union office on February 16, 1977 around noon. She heard the door open, looked up and saw three men come into the office. One came to her desk while the other two remained behind. The person who approached her desk asked if she had a Western Union message for him and gave a name. In order to determine the answer to his question, Miss Seiple was required to turn in her swivel chair to her "hold file". Finding that she had no Western Union messages, she started to turn back to her desk and to say that she had nothing when she discovered that the first man was already on the top of her desk diving towards her. She screamed. He hit her, knocked her backwards, knocked over the chair and got on top of her five or six feet behind the desk. She screamed again. She remembers seeing his arm start to come up, but that is the last thing she remembered. By the time she regained consciousness, the three had left. Her desk drawer was open. Papers and change were scattered on the floor. A heavy necklace she had had about her neck was broken. All the bills were gone from the top drawer of her desk. Approximately $25.00 was taken.

I IS THE DEFENDANT ENTITLED TO A NEW TRIAL DESPITE THE COURT'S CAUTIONARY INSTRUCTIONS TO THE JURY CONCERNING AN ANSWER GIVEN BY THE WITNESS, ANNETTE SMITH, THAT SHE HAD BEEN THREATENED BY THIRD PARTIES?

The matter first arose on re-direct examination by the Assistant District Attorney of the witness, Annette Smith, when the following exchange took place:

Question: "Have any threats been made upon you by anyone in the penal system or the District Attorney's Office that if you did not testify here today that you might receive a harsher sentence or penalty?" Answer: "I have been threatened. I have got threat notes." Question: "Has anyone from the District Attorney's Office or in the legal system made any threats upon you, that is the police or District Attorney's office?" Answer: "No."

No motion or objection was made at that time, but immediately following the very short re-cross examination defense counsel mentioned the matter at side bar, saying:

"I think the clear implication was that [the threat] was from the defendant and I would like to move for a mistrial at this time."

The Court suggested to counsel the possibility of bringing the witness back to the witness stand to show who the threats were from and stated that it favored that course. Defense counsel said, "It's going to further muddy the water I'm afraid, but --".

The witness apparently had left the courtroom, for the Court indicated it would wait a minute for her to return and in the meantime went on to the direct examination of Rickie L. McLean, the defendant. Following this and out of the presence of the jury, the Court inquired of Annette Smith whether defendant or any person on his behalf threatened her. She responded that they did not. After receiving that response, the Court proposed to return the jury and ask the same two questions, but asked of counsel their suggestions prior to doing so. Counsel for the defendant wished to renew his motion for mistrial but preferred as a second choice to have the questions asked in the presence of the jury. The District Attorney having no objection, the jury was returned and the witness, Miss Smith, was asked the same two questions in their presence. She answered as she had in the absence of the jury that defendant did not threaten her nor did anyone acting on behalf of defendant. Following these responses of Annette Smith, the jury was instructed,

"Now, we instruct the jury that assuming for the sake of discussion only, that she was threatened by some other person or persons, that it has no bearing whatsoever on this case at all and you should disregard it and strike it from your mind."

Discussion

"Every unwise or irrelevant remark made in the course of trial by a judge, a witness or counsel, does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial." Commonwealth vs. Phillips, 183 Pa. Super. Ct. 377, 382, 132 A.2d 733, 736 (1957), quoted with approval in Commonwealth vs. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973).

The subject of curative instructions is discussed in Commonwealth vs. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976). There it is held that curative instructions may be adequate to cure error in some circumstances. The decision is initially within the discretion of the trial judge, subject to appellate review. Two considerations are important but are not necessarily exclusive. They are the nature of the allegedly prejudicial reference, whether it is specific or vague, and whether the district attorney exploited the error (in Maloney, the accused's silence). In consideration of the rule of Commonwealth vs. Maloney, supra, and of the cases which have held that curative instructions were sufficient, we conclude there was no error in this case requiring the grant of a new trial.

In Commonwealth vs. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974), the district attorney in closing argument referred to the defendant's failure to call a particular accomplice to corroborate his testimony, knowing that that accomplice had fifth amendment rights and could refuse to testify. Immediate cautionary instructions were held sufficient to cure the error. Defendant also claimed error in Martinolich when the testimony of an expert witness varied prejudicially from an offer of proof. The Supreme Court ruled that the trial judge's "forceful instruction" to the jury rectified any prejudicial effect. The Court noted that it was satisfied there was no intent to deceive or trick the defense. A new trial was denied.

In Commonwealth vs. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975), a witness testified over objection that before leaving Pennsylvania for Texas he had notified the gang of which the defendant and the witness were members that he had given a statement to the district attorneys office. The defendant contended that this testimony permitted the jury to infer that the witness left the state because of fear of the gang. Curative instructions were immediately given and were held to be sufficient.

In Commonwealth vs. Brown, 444 Pa. 318, 282 A.2d 364 (1971), a Commonwealth witness in an assault with intent to ravish prosecution testified that "this guy had tried this several times before." Curative instructions were held to be sufficient.

In Commonwealth vs. Williams, 230 Pa. Super. Ct. 72, 327 A.2d 367 (1974), a witness in a burglary and larceny case expressed an opinion that the defendant was a drug addict. Immediate cautions were held to be sufficient.

In our case the allegedly prejudicial remark made by Annette Smith was not wholly responsive to the assistant district attorney's question. He asked her only about threats from persons working for the law enforcement arm of the government. No attempt was made to exploit her statement. The reference to threats was vague, rather than specific. See Maloney, supra, After the clarifying questions were asked of Miss Smith to show that the threats were in no way connected with defendant, the jury was told to strike the matter from their minds.

WHEREFORE, IT IS CONCLUDED that there was no error in this case.

II DID THE COURT ERR WHILE DISCUSSING THE TESTIMONY OF THE WITNESS, ANNETTE SMITH, IN THE MANNER IN WHICH IT RECITED THE RELATIONSHIP BETWEEN CERTAIN EVENTS THAT HAD OCCURRED?

Annette Smith was called by the Commonwealth. She was a juvenile, 17 years of age. The jury was informed that she was presently confined in the Youth Development Center at Waynesbur, Pennsylvania, for an indeterminate sentence. The jury was informed that juveniles are sent to institutions to be rehabilitated and not to be punished and therefore there are no set terms of periods of months or years. The jury also was informed that it should not feel there was anything unusual concerning the stipulation that the juvenile received an indeterminate term at the Waynesburg Youth Development Center. Then followed the section of the charge specifically giving rise to the present contention:

"It would appear from the stipulation that this defendant [sic] [being the witness, Annette Smith] was found guilty of a theft on February 2nd of 1977 in which she took $357.00 from the Clark Super 100 service station; that she herself participated in an armed robbery which occurred at Allen's Clothing Store on 21 Chestnut Street in the City of Sharon. That robbery allegedly occurred or the testimony was that it did occur on February 22, 1977 which was allegedly two days after this defendant came into this area but would be six days after this armed robbery that the defendant is being tried for and six days after the conversation that they had, if they did have it concerning the defendant's participation in the armed robbery -- in the robbery. She was convicted on March 17, 1977 being the same date as the other conviction of stealing on February 23, 1977 a check in the amount of $161.00 from a mailbox and on March 17th she was adjudged to be a delinquent child and was ordered to be committed to the Youth Development Center at Waynesburg there to remain until further Order of this Court."

The jury was then instructed on the purpose for which it could consider Miss Smith's conviction of crime and that being in Waynesburg Youth Development Center for an indeterminate term could give rise to the possibility of her thinking that she would receive more favorable consideration for testifying.

Defendant's contention is that by elaborating on the dates involved and connecting them to defendants appearance in the area it was implied to the jury, or at least the jury could draw an inference, that defendant was engaged in a number of criminal episodes and perhaps in some manner involved in the crimes attributable to Annette Smith. Defendant, by brief, now contends that the sole reason for introducing into evidence Annette Smith's record was to show the type of individual she was and that she should not be believed. If that was the sole purpose of the defense, it failed to bring it to the attention of the Court at trial. Rather, counsel for the defense stated at side bar:

"I want to stipulate that she has either been found guilty or pled guilty and has been adjudicated to the commission of certain offenses. Is that right?" (Directing the comment to the Assistant District Attorney who responded yes.)

Therefore, based on agreement of counsel, the Court then reviewed the juvenile records that had been produced from the Clerk's office and read to the jury the stipulation on the prior criminal record of the witness, Miss Smith. Following this, each counsel was asked in the presence of the jury whether the stipulation was a correct statement, to which question both counsel responded in the affirmative. No points for charge were submitted by either party.

The basic question appears to be whether it was likely that a jury would draw an inference of other criminal activity on the part of the defendant from the charge. The charge was not intended to connect the Allen robbery to defendants appearance in the area. This is borne out by the facts. If the jury believed, as the defense now argues they did, that the Allen robbery, which occurred on February 22, involved defendant because it occurred two days after defendant came into the area, which by his testimony was February 20, 1977, they would have acquitted him of the Western Union robbery, which occurred February 16, 1977, for he would not have been in the area at that time. Their verdict of guilty manifests a belief on their part that the Allen robbery was not connected with defendants appearance in the area. Annette Smith, through her testimony, placed defendant in the area as early as January.

The test is whether the jury could reasonably have inferred from the facts presented that the accused had engaged in prior criminal activity. Commonwealth vs. DeCampli, 243 Pa. Super. Ct. 69, 364 A.2d 454 (1976). There is no question that if it is disclosed to a jury that a defendant was involved in other criminal conduct the prosecution has the burden of showing that the error was harmless beyond a reasonable doubt. Commonwealth vs. Harkins, 459 Pa. 196, 328 A.2d 156 (1974). It should be noted that the Court did not furnish any information to the jury that was not already in evidence. That objected to in the instant case is the arrangement of that testimony in the charge. The dates had significance to this Court other than that argued by the defense. They were arranged in the charge according to their chronological occurrence. The issue that the jury would have to decide was whether defendant would discuss with a 17 year old girl, Annette Smith, his involvement in a robbery. If the jury believed that Annette Smith had herself become involved in a robbery at about the same time, as well as in other offenses, there would be more reason to believe Annette Smith might discuss with Rickie McLean the robbery that he was involved in.

In Commonwealth vs. Smith, 457 Pa. 638, 326 A.2d 60 (1974), the defendant's mother was called by the defense as a character witness. She testified that person had never been in trouble before. On cross-examination, over objection by defense counsel, she was asked, "Has [defendant] ever been charged with any crimes and convicted of them?" Answer: "No." The defendant was in fact a first offender. The defendant alleged it was prejudicial error to have asked the question and therefore created in the minds of the jurors an impression that the defendant had been convicted of a crime previously. The Supreme Court was not convinced that this isolated question on cross-examination and its answer were calculated to generate an impression of guilt, nor that the defendant was deprived of a fair and impartial trial.

Similarly in the instant case, the effort was merely to put the testimony in chronological sequence for better understanding by the jury. There was no effort to suggest to the jury that because the events occurred close to each other that defendant was involved in any of the criminal activities of Annette Smith.

WHEREFORE, IT IS CONCLUDED that it cannot reasonably be said that this isolated passage of the court's charge generated an impression of other criminal conduct on the part of defendant or in any way deprived him of a fair and impartial trial.

III DID THE COURT ERR IN ITS CHARGE CONCERNING CONSPIRACY?

This case is a classic example of taking one sentence of a section of a charge out of context and claiming error. It is, of course, well settled that a charge must be considered as a whole. Commonwealth vs. Wortham, 471 Pa. 243, 369 A.2d 1287, 1289 (1977); Commonwealth vs. Ewell, 456 Pa. 589, 319 A.2d 153, 156 (1974).

The specific sentence of the two pages of the charge concerning conspiracy to which objection is taken is the following:

"It's possible that there is nothing said to each other, if by the relationship with each other, previous dealings, they are aware of what the other man may do."

It is agreed, as contended by defendant, that mere knowledge that another has an unlawful purpose does not alone show conspiracy. Commonwealth vs. Stevens, 231 Pa. Super. Ct. 481, 331 A.2d 719 (1974). The charge in this case was taken almost verbatim from the statute.*fn2 The charge on the subject of conspiracy was as follows:

"Now, in this case the defendant is also charged with a conspiracy. And the conspiracy is as to all three of the crimes that he could be found guilty of. A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating the commission of the crime he does several things. One would be to agree with some other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation or [sic] commit the crime; or two, he agrees to aid such other person or persons in the planning or commission of the crime or of an attempt or solicitation to commit the crime. In order to do this however, there has to be an overt act. That means that one of the persons must do something towards the carrying out of the crime.

Now, let me give you an example. Let's assume that three men sit in a room across from a bank and they talk for hours on the best way to rob that bank and let's assume that somebody overhears that and they report it to the police and everything that is said then is either recorded by the police or it's remembered by the witness and testified to in Court; the people would be charged with conspiracy say for robbery of the bank. Would the men be guilty? Answer would be no because they had done nothing but talk. They hadn't done this overt act that is required to carry it out. But let's assume that one of them did in fact go to the bank and cut the alarm wires and then they were all cut [sic]; that would be an overt act to commit the crime of robbery and all of the persons that participated in the discussion as well as the man that cut the wires could be guilty of a conspiracy to commit the robbery. Now, is it necessary that they sit down and draw out plans in writing or long-term discussions of how the crime will be committed? Answer, no. It can even be on the spur of the moment. It's possible that there is nothing said to each other, if by the relationship with each other, previous dealings, they are aware of what the other man may do.

You look at all of the surrounding circumstances to determine whether or not you believe that there was a conspiracy. Now, if there was a conspiracy you look to see what they conspired to do. Did they conspire to rob this woman by causing serious bodily [sic]; by bodily harm or simply by physical force? It is possible that they can conspire to commit a crime and not conspire to do it by serious bodily harm; but that it might result in serious bodily harm because of what may have occurred at the point of the robbery. What I'm pointing out to you is it's possible to find a defendant guilty of a conspiracy for a greater or less crime than was actually carried out because they didn't plan to do what may have eventually happened. They may have planned to rob but not to beat the woman up to the point where they committed serious bodily injury. So you have to look in your minds as to what they planned, if they planned anything. Three men came in. Why did it take three? Why did three come in instead of one come in? If you are a woman, you are behind the desk, you are working and you have three people, men present themselves in front of you. Is it more likely that your will will be overcome than if there is one person in there' Is there something to be addied [sic] to a robbery by there [sic] mere number of people that are confronting this woman as she is seated. If you believe that the number had something to do with it, then that is evidence from which you can find that there was in fact a conspiracy to commit the crime."

In a prosecution for criminal conspiracy the Commonwealth must prove beyond a reasonable doubt that the defendant shared "a common understanding or agreement which is the heart of every conspiracy." Commonwealth vs. Kinsey, 249 Pa. Super. Ct. 1, 375 A.2d 727, 731 The Commonwealth is of course not required to prove "an explicit or formal agreement in order to establish the existence of a conspiracy." Commonwealth vs. Cameron, 247 Pa. Super. Ct. 435, 372 A.2d 904, 906 (1977). The conspiracy may be proved by circumstantial evidence. Commonwealth vs. Kidd, Pa. Super. Ct. 380 A.2d 416 (1977). What the Court was endeavoring to inform the jury in this case was that, as to the agreement between the alleged conspirators, no particular formality was required to establish the offense of conspiracy. That was not error.

Hence, this Court reaffirms the previous denial of the motion for new trial and the denial of the motion in arrest of judgment.

Dated: July 9, 1978

BY THE COURT: Albert E. Acker, Judge

SENTENCE

AND NOW, on this 7th day of April, 1978, it is the sentence of this Court that you pay the costs and be imprisoned in a State penal institution for a period not less than one and a half nor more than four years to be served upon release of incarceration by the State of North Carolloa on completion of sentence or sentences there imposed upon the defendant which he is currently serving or required to serve. Upon service of such sentence or sentences, the State of North Carolina, through its proper representatives, shall notify the Sheriff of Mercer County, Pennsylvania of the availability of the defendant to commence service of the above sentence. The Sheriff of Mercer County shall then without further Order of this Court secure the defendant in North Carolina and transport him to the Pennsylvania Correctional and Diagnostic Clinic in Pittsburgh, at the Western Penitentiary for determination of a place of confinement in the State of Pennsylvania Penal System.

The defendant is given credit for ninety-four (94) days' of previous incarceration upon this sentence.

You stand committed until the sentence be complied with.

BY THE COURT,

/s/ Albert E. Acker Albert E. Acker, Judge

PRICE, J.

I must dissent for I believe the trial court by its charge inadvertently led the jury to believe that appellant had engaged in prior criminal activity.

Annette Smith was a Commonwealth witness who gave testimony implicating appellant in this robbery. She was a juvenile, and at the time of her testimony was confined in a Youth Development Center. Defense counsel stipulated that she had either been found guilty or pled guilty to the commission of certain offenses, and the trial court, pursuant to the agreement, read to the jury her juvenile records and the stipulation of her prior criminal record.

The trial court, in its charge, made the following comment:

"It would appear from the stipulation that this defendant [sic] [being the witness, Annette Smith] was found guilty of a theft on February 2nd of 1977 in which she took $357.00 from the Clark Super 100 service station; that she herself participated in an armed robbery which occurred at Allen's Clothing Store on 21 Chestnut Street in the City of Sharon. That robbery allegedly occurred or the testimony was that it did occur on February 22, 1977 which was allegedly two days after this defendant came into this area but would be six days after this armed robbery that the defendant is being tried for and six days after the conversation that they had, if they did have it concerning the defendant's participation in the armed robbery -- in the robbery. She was convicted on March 17, 1977 being the same date as the other conviction of stealing on February 23, 1977 a check in the amount of $161.00 from a mailbox and on March 17th she was adjudged to be a delinquent child and was ordered to be committed to the Youth Development Center at Waynesburg there to remain until further Order of this Court."

I believe this portion of the charge permitted the jury to infer, if indeed it did not imply to the jury, that appellant was engaged in a number of criminal episodes, and was involved, with the witness, in the crimes read to the jury as a record of the witness's conviction.

Based upon this interpretation, I would grant appellant a new trial.


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