December 29, 1981
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
RICHARD M. MOHN, APPELLANT
No. 96 Harrisburg, 1980, Appeal from the Judgment of Sentence dated April 14, 1980, Court of Common Pleas, Criminal Division, Dauphin County, 1979, Nos. 1782, 1782A.
Before Price, Johnson and Shertz, JJ. Shertz, J. concurs in the result. Price, J. did not participate in the consideration or disposition of this case.
The opinion and order dated April 8, 1980, denying the first motion for a new trial is affirmed on the comprehensive opinion of Judge Dowling.
The judgment of sentence dated April 14, 1980, and the denial on August 13, 1980 of the subsequent motion for a new trial based on after-discovered evidence, are affirmed.
SHERTZ, J. concurs in the result.
PRICE, J. did not participate in the consideration or disposition of this case.
No. 96 Harrisburg 1980
Commonwealth of Pennsylvania v. Richard M. Mohn
In the Court of Common Pleas of Dauphin County, Pennsylvania Nos. 1782, 1782(a) C.D. 1979 Charges: Arson, Criminal Conspiracy
BY THE COURT:
Defendant heatedly contends that his convictions of arson and conspiracy be set aside and he be awarded a new trial. He has fired six volleys in an attempt to breach the jury's verdict.
The evidence when viewed through the eyes of the verdict winner engulf Richard Mohn in this conflagration as surely as did the flames consume his property. In the early evening of September 17, 1979, units of the Harrisburg Fire Department were called to a general alarm blaze at 1317 Liberty Street, an unoccupied two-story frame structure. Before the fire could be brought under control, the occupied homes at 1315 and 1319 Liberty Street were totally destroyed and houses at 1313 and 1321 Liberty Street were partially affected by the blaze.*fn1 One Daniel Davenport, who was with his wife and sons ages 3 and 6 at 1319 Liberty Street, testified that he heard an explosion in the building next to his and, on running from his home, saw that the house at 1317 was completely engulfed in flames. A brother, James Davenport, who was in the area heard the explosion and observed a man running out the back door with his clothing on fire. Approximately forty-five minutes later one Mikel Vereen was admitted to the Polyclinic Medical Center emergency room with burns over 65% of his body. Two days later, Vereen gave a statement to the State Police and City Fire Marshall implicating himself in setting the fire. He also stated that he had met a person known only to him as "Jim" in an uptown bar two nights before the fire and that "Jim" recruited him to burn the property at 1317 Liberty Street on behalf of his employer, a Mr. Mohn.
"Jim" was later identified by the police as one James Daron who was arrested on October 11, 1979 for his participation in this incident. On the day following his arrest, Daron gave a complete statement to the police telling of his employment by the defendant as a general handyman. Daron testified that a few weeks before the fire he had been solicited by Mohn to burn the building at 1317 Liberty. He also indicated that about two weeks prior to the fire he and Mohn had gone to the property to remove a stove, banister, and interior door which were in good condition. The stove was replaced with one from another property which was in poor condition. On the day of the fire he met with Mohn at a local restaurant to advise him that another individual had been hired to torch the building and that he required six hundred ($600) dollars for the job. Mohn then entered National Central Bank at 13th and Derry Streets returning with six-one hundred dollar bills which he gave to Daron. Daron then recounted that he met Vereen uptown and that the two of them went out to the hill section of the city where they purchased gasoline and proceeded to 1317 Liberty Street. There gasoline was spread throughout the house and ignited. The latter fact was confirmed by two expert witnesses - Fire Marshall Elmer W. Shover and Cpl. William Sweet - who testified that in their opinion the fire was of incendiary origin having been accelerated by a flammable liquid which was spread throughout the building.
Other Commonwealth witnesses established that Mohn had purchased the property about a year before the fire as one in a group of investment properties most of which were leased through the Harrisbury Housing Authority and insured through the Insurance Placement Facility of Pennsylvania. Mr. Franklin Bornman of the Harrisburg Housing Authority testified that the property at 1317 Liberty Street had been leased through Section 23 of the Housing Act until June 30, 1979. On that date the Authority notified Mohn that the property was required to qualify under Section 8 of the Act which required eighteen (18) specific repairs to bring it into compliance.
In fact no repairs were ever made to the property by the defendant and it remained vacant until the day of the fire. In spite of this, insurance coverage on the property was increased from seven thousand ($7,000) dollars to twelve thousand ($12,000) dollars prior to the fire, a fact which Mohn confirmed with his insurance agent a few weeks prior to the fire.
Finally, the Commonwealth called witnesses to confirm Daron's statement that on the day of the fire he was paid six hundred ($600) dollars in cash by the defendant. Coincidentally Daron had been arrested as a parole violator on the very night of the fire and when committed to Dauphin County Prison was found to have five-one hundred dollar bills plus ninety-five ($95) dollars in change and other currency. Bank officials testified that on the afternoon of the fire, Mohn had closed a savings account in the amount of five hundred ($500) dollars and written a check on another account and received six-one hundred dollar bills. The sufficiency of the evidence is not contested.
None of the issues in the post-trial motion raised sufficient sparks to ignite a successful plea for a new trial.
It is first contended that the Court erred in failing to grant a continuance because of pre-trial publicity. The issue relates to an ABC telecast, "Twenty-Twenty" aired on February 7, 1980, and carried by a local television station a segment of which concerned an arson-for-profit scheme. On the Sunday before the trial commenced, the local newspaper, The Patriot News, contained the weekly magazine supplement, Parade, which included a feature story involving survival during a fire. Claiming that the aforementioned publicity was prejudicial to his client, defense counsel requested a continuance of the trial. When asked by the court as to whether counsel wished voir dire on the issue during jury selection, defense counsel refused.
First and foremost it must be noted that the alleged "pre-trial publicity" had absolutely nothing to do with the defendant's case, the city of Harrisburg, or even, for that matter, the type of fraud scheme shown on "Twenty-Twenty". As for the Parade article, the matter of arson was only ancillary to the principal theme previously stated. On its very face, then, the potential for prejudice was extremely remote. However, in an effort to eliminate any possibilities of prejudice, the court made repeated inquiry of defense counsel on the question of voir dire. It is the very objective of the examination of jurors under voir dire to secure a competent, fair, impartial and unprejudiced jury. COMMONWEALTH v. JOHNSON, 452 Pa. 130 (1973); COMMONWEALTH v. ENGLAND, 474 Pa. 1 (1977). The accepted procedure where an accused claims to have been prejudiced by an inordinate dissemination of pre-trial publicity pertaining to the crime charge is to request a voir dire of the jury panel on this issue. COMMONWEALTH v. KIRKPATRICK, 255 Pa. Superior Ct. 249 (1978).
Defendant relies principally on COMMONWEALTH v. BRADO, 470 Pa. 306 (1977). There the Court after noting that normally a showing of identifiable prejudice to the defendant is required, acknowledged an exception where the nature of the publicity was inherently prejudicial. In BRADO, the defendant was on trial for murder and the morning before the jury selection process, a local newspaper with a wide circulation published a two column editorial denouncing in highly critical language drunkenness as a defense as enunciated in COMMONWEALTH v. GRAVES, 461 Pa. 118 (1975). The Supreme Court pointed out even though the editorial did not mention BRADO's case, it "criticized and ridiculed this Court's approval of permitting intoxication as a defense to criminal conduct - the very defense relied upon by BRADO...." (page 310) The Court concluded that the probability that the jurors would be effected by the article and direct their anger against the defendant who presented the very defense the day the articles were published were so high that the article must be deemed inherently prejudicial. In our case, the articles were not totally or even principally concerned with the subject of arson for profit and inasmuch as they did refer to it, were discussing a point of view which is universally accepted, i.e. the evil of arson. In the BRADO case, public acceptance of intoxication as a defense is at best highly debatable. BRADO is as different from this case as the fire under question from that of burning leaves on the front lawn. Defendant's other cases deal with prejudice directly related to the defendant.
It is next argued that a mistrial should have been declared after an insurance adjuster stated that he had two previous losses with the defendant. The matter refers to the following question and answer:
Q With regard to the property at 1317 Liberty Street, how and when did you get involved with that loss?
A I first realized that I may have possible involvement on the evening news that night of the 17th. The next morning in the paper sort of confirmed my involvement from an insurance standpoint when I noticed Mr. Mohn's name in the paper. I only assumed that I would be involved at that time as I had two prior losses with Mr. Mohn and I assumed that almost anything in the city of Harrisburg - that is what is called substandard business. (N.T. 170)
No further testimony was induced by the District Attorney or on cross-examination on the subject of the two prior losses. At the conclusion of the direct examination, defense counsel approached side bar and requested a mistrial which was denied. The court did offer to give a curative instruction but the suggestion was declined by defense counsel.
While it is fundamental that the Commonwealth may not introduce evidence of prior criminal conduct as substantive evidence of guilt in the matter being tried, testimony must be such that a juror would reasonably infer from the fact presented that the accused had engaged in prior criminal activity. COMMONWEALTH v. GROCE, 452 Pa. 15 (1973). An examination of the question and response in this case leads clearly to the conclusion that: (1) a "prior claim" is not a per se reference to criminal activity; and, (2) the reference in the answer was extremely oblique and not even in response to the district attorney's question.
Defendant argues that COMMONWEALTH v. WILSON, 440 Pa. 117 (1971) supports his contention, but it does not. In that case the defendant was charged with arson and a number of Commonwealth witnesses testified that he was observed near another fire on the same day. This is not even warm on the alleged introduction of prior crimes for here there was but a reference to prior losses with an insurance company which does not suggest any criminal activity. The same can be said of COMMONWEALTH v. GROCE, 452 Pa. 15 (1973), also mentioned in defendant's brief where a police officer indicated that he had prior association with the defendant.
Tne next two assignments of errors were somewhat smoky. Complaint is made of the Court characterizing as circumstantial evidence the defendant's withdrawal of $600.00 from his bank on the day of the arson and it being found that evening on the person of one of the confessed arsonists. During his charge to the jury, the Court instructed as follows:
"As I say, one the other hand, sometimes a person may tell the truth about how he and others committed the crime. In deciding whether or not to believe Daron and Vereen you should be guided by the following principles which apply especially to their testimony. First, their testimony should be looked upon with disfavor as coming from corrupt and polluted sources. They are admitted felons. Secondly, you should closely and separately examine the testimony, accept their testimony only with caution and care. Third, you should consider separately whether the testimony of each is supported in whole or part by other evidence aside from his own testimony for if it is supported by independent evidence, it is more dependable.
The Commonwealth contends that they have other corroborating testimony, the $600 and other things which you heard about. However, you may not consider the testimony of Daron as supporting the testimony of Vereen. In other words, supporting evidence would be other evidence, to wit, you could consider the fact that Daron had $600 on him the night of the fire which he says was given to him and you have evidence that that amount of money was withdrawn, six one hundred dollar bills, by Mr. Mohn on September 17th. That could be considered, if you believe that testimony, as corroborative."
"There has been some mention -- and this will be on direct and circumstantial evidence. There are two kinds of evidence. One is not necessarily any better than the other. Direct evidence, for example, is if you see someone commit an act. It was Vereen running from the building, I believe, although you take your recollection, with his clothes burning. That is direct evidence he was in the building. Direct evidence could be, if you believe it, the fact that Daron says his boss hired him to do it and we have circumstantial evidence. That is evidence which tends to support the fact that he was involved. The $600 for example, the fact that under the Commonwealth's evidence or under the defendant's own testimony he withdrew on the day of the fire six one hundred dollar bills and then that night when Daron was picked up by his parole officer and taken to jail he had five one hundred dollar bills and some others in change. That would be circumstantial evidence, you see, so we have both types in this case."
The Court asserted its liberty to use a demonstrative example in explaining the term circumstantial evidence. In each case where the $600 was mentioned, it was only by way of illustration and prefixed with the phrase "if you believe that testimony". Thus, the ultimate credibility of witnesses was left within an exclusive province of the jury. See, COMMONWEALTH v. BARONSKY, Pa. Superior Ct. , 400 A.2d 168 (1979).
The other hazy issue alleges impropriety in the Commonwealth interjecting a comment regarding a question raised by the jury during its deliberation. During the course of the jury's deliberation a question was sent to the trial judge requesting that the statement given to police at the hospital by Mikel Vereen be provided to the jury. In reply to the request the court noted that the statement was not admitted into evidence and that, in any event, confessions cannot be taken out by the jury. The court then stated: "The actual statement isn't in evidence." And a few moments later, turning to counsel, the court inquired "anything, gentlemen?" Defense counsel answered, "No, sir." And the court then stated: "You just have to rely on the testimony because it is not in evidence." At that point the Commonwealth's attorney made the following statement:
"If the court please, I wanted to clarify that while the physical statement was not in evidence, that the essence of the statement --."
At this point the request for clarification was interrupted by a further comment by the court.
The deputy district attorney was concerned with the court's statement that Vereen's confession was not in evidence. While the document itself had not bee admitted, there had been testimony from two sources about the existence of the statement and the substantive content of that statement. In the latter sense, Vereen's statement was very much in evidence and apparently the Commonwealth did not want the jury to assume that the contents of the statement could not be considered by them simply because the document itself was not presented. In any event, the statement was being posed in the form of a request to the court to clarify its instruction. It was not, as the defense contends, a comment directed to the jury.
It said that the Court also erred in permitting a witness to express an opinion as to the cost of repairs to the defendant's property.
In his capacity as leased housing superintendent for the Harrisburg Housing Authority, Mr. Bornman had sent a letter to the defendant dated July 2, 1979. That letter referred to a property inspection made on June 26, 1979, and detailed a list of some eighteen (18) repairs which were required to bring the property at 1317 Liberty Street into compliance under the Section B Housing Program. Bornman stated that he had been employed by the Housing Authority for ten and one-half (10 1/2) years and had experience with respect to fifty-eight (58) authority owned units. He then stated: "Currently we are working with architectural engineers in establishing cost on rehabilitation of the units which are of very close comparison to this unit." (N.T. 186). Additional qualifying questions were asked by the Commonwealth, by the Court, and by defense counsel on cross-examination before the witness was ultimately allowed to express an opinion.
Expert testimony is generally permitted only as an aid to the jury where the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman. McCormick, HANDBOOK ON THE LAW OF EVIDENCE, Section 13, (2d Ed. 1972). It is difficult to conclude with certainty that the subject of home repairs falls totally within this definition as most laymen have had some experience in this area. It must be noted that Pennsylvania law allows lay people to express an opinion in an area where the witness has personal knowledge and observation of the facts and circumstances upon which he bases such opinion, IN INTEREST OF RIGHT, Pa. Superior Ct. , 401 A.2d 1209 (1979). The testimony at issue was a mixed blend of lay opinion and expert testimony in an area in which the witness certainly had more experience that the average citizen.
In any event, the admissibility of expert or opinion testimony was clearly within the discretion of the trial court. Weight of such testimony, on the other hand, lies within the sole province of the jury. It is the function of cross-examination to discredit or at least diminish the effectiveness of such testimony. COMMONWEALTH v. SMALLWOOD, 456 Pa. 392 (1976).
Lastly, it is asserted that the Court erred in failing to grant a new trial based on after discovered evidence. Defendant filed a supplemental motion for a new trial based on the following "after-discovered evidence". One Peggy Frederick, a former neighbor of James Daron was questioned prior to trial concerning an alleged incident in which she was to have observed Daron burn a one hundred dollar bill during the late summer of 1979. Prior to trial she denied the incident to the defendant's investigator; whereas, after the verdict, she made a voluntary statement indicating that she had in fact witnessed the incident.
The criteria to be followed by the court in evaluating such a motion is outlined in COMMONWEALTH v. MOSTELLER, 446 Pa. 83 (1973):
"... a new trial in a criminal case will be awarded on the ground of after-discovered evidence where the evidence in question (1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and, (4) is of such nature and character that a different verdict would likely result if a new trial is granted."
It is in the fourth category that the defendant's proffered testimony fails to pass muster. In the first place the very relevance of this information is open to serious question. Even if the testimony were accepted as being credible, the fact that Daron burned a one hundred dollar bill sometime during the late summer of 1979 has no bearing on the issue of his conspiracy with the defendant in mid-September.
At the conclusion of the hearing on this motion, the court determined moreover, that the witness was not believable because (1) she had previously lied about the incident, (2) would not have been in a position to observe the denomination of the bill under the circumstances described, (3) was a tenant of Mr. Mohn, and (4) had only volunteered the statement to defense counsel after Mohn had brought her to him.
It is the Court's right and in fact duty to pass upon the credibility of witnesses offering after discovered evidence; see, COMMONWEALTH v. TREFTZ, 465 Pa. 614 (1976); U.S. v. GANTT, 298 F. 2d 21 (1962); U.S. v. AUSTIN, 387 F. Supp. 540 (1974). Thus, we conclude that the testimony was of such low credibility and of so little relevance to the ultimate issue being tried that no different verdict would result in a new trial.
Accordingly, we enter the following:
AND NOW, this 8 day of April, 1980, defendant's motion for a new trial is denied and the district attorney is directed to present him for sentencing.