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COMMONWEALTH PENNSYLVANIA v. LARRY BRUNNER (01/05/82)

submitted: January 5, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
LARRY BRUNNER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. WOODROW WILSON MURPHY, APPELLANT



No. 1014 Philadelphia, 1981, No. 1191 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Montgomery County at No. 1881 - 80.

COUNSEL

Gary R. Egoville, Assistant Public Defender, Norristown, for appellants.

David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, Cavanaugh and Montemuro, JJ. Cavanaugh, J., files a concurring and dissenting opinion.

Author: Spaeth

[ 305 Pa. Super. Page 414]

This case arises on two appeals, which have been consolidated. Appellant Brunner and appellant Murphy were tried together before a jury. Each was convicted of burglary, theft of movable property, theft by receiving stolen property, and conspiracy. On the burglary convictions, appellant Brunner was sentenced to five to ten years imprisonment, and appellant Murphy to seven and one-half to fifteen years imprisonment.*fn1 Appellants make several common arguments, which will be discussed first: (1) whether the lower court erred in denying a motion to dismiss filed by each appellant for unreasonable pre-arrest delay; (2) whether the lower court erred in denying the motion to suppress prior convictions of each appellant; and (3) whether the evidence was sufficient to sustain the convictions. In addition, each appellant raises other issues. Appellant Brunner argues that the lower court erred in denying his motion to sever. Appellant Murphy argues that the lower court erred (1) in denying his motion for a change of venue; (2) in denying his motion to suppress his alias "Christopher Souder;" (3) in admitting into evidence certain exhibits; and (4) in denying his motion for a mistrial when a Commonwealth witness testified that he had "jumped parole." We do not find any of these arguments meritorious, except appellant Murphy's argument that his motion for a mistrial should have been granted. We therefore affirm appellant Brunner's judgment of sentence, but vacate appellant Murphy's and grant him a new trial.

[ 305 Pa. Super. Page 415]

The first of the common arguments concerns whether there was sufficient pre-arrest delay to justify granting appellants' motions to dismiss. Appellants argue that there was a delay of ten months between the time of the incident and their arrest. Appellant Brunner's Brief at 9; Appellant Murphy's Brief at 10.

The burglary of the Fries residence, which is the incident that gave rise to the charges here, took place on August 10, 1979. At the pre-trial hearing, Trooper Kline testified that he had first learned of Alice Maxwell, also known as Debbie Souder, on December 7, 1979, the day she was arrested for attempting to sell a stolen camera to a camera store. N.T. 12/2/80, 7. On December 12, a search warrant was issued for the residence in which Ms. Maxwell lived with appellant Murphy. Id. 15. On January 30, 1980, Ms. Maxwell told the trooper that she had been involved in burglaries with both appellant Brunner and appellant Murphy. Id. On March 10, Ms. Maxwell told the trooper that she had burglarized the Fries home. Id. 12. There were subsequent interviews with Ms. Maxwell, id. 12, and further investigation, id. 14. On June 11, complaints were issued for both appellants. Appellant Brunner was arrested on June 18, and appellant Murphy on June 20. d. 13-14. Trooper Kline explained that the delay in arresting appellants after the complaints had issued occurred because it was necessary to have appellants released from incarceration. Id. 14.

Appellants argue that the ten-month period between the Fries burglary, on August 10, 1979, and their arrests, on June 18 & 20, 1980, denied them due process. The Commonwealth argues that the relevant time period, and delay, was some four and one-half months, that is, from January 30, 1980, when Ms. Maxwell first mentioned appellants, to appellants' arrests in June. Brief for Appellee at 8 (Brunner); Brief for Appellee at 5 (Murphy). As to appellant Brunner, the lower court held that the "three month delay" was justified by the need for further investigation, and that Brunner had not been prejudiced by the delay since he was able to produce an alibi witness. Slip op. at 5 (Brunner).

[ 305 Pa. Super. Page 416]

As to appellant Murphy, the lower court held that the delay was justified. Slip op. at 3 (Murphy).

We agree with the lower court's conclusion, but not all of its reasoning. The relevant time period is the ten months between the date of the incident and appellants' arrests. See Commonwealth v. DeMarco, 281 Pa. Superior Ct. 62, 421 A.2d 1147 (1980); Commonwealth v. Sanders, 260 Pa. Superior Ct. 358, 394 A.2d 591 (1978). In deciding whether this ten-month delay denied appellants due process, we must balance the reasonableness of the delay against the prejudice to appellants. Here, the delay was long, but it was justified by the investigative efforts of the police, who did not learn that appellants were connected with the Fries burglary until March 10, 1980. See N.T. 12/3/80, 9, 12, 17, 18. Moreover, even if the delay were not justified, appellants have shown no prejudice, which is a prerequisite to the grant of a motion to dismiss. Commonwealth v. DeRose, 225 Pa. Superior Ct. 8, 307 A.2d 425 (1973) (mere fact of unjustified delay insufficient to justify dismissal; dismissal granted where defendant showed both lack of justification and prejudice). As the lower court noted, slip op. at 5, appellant Brunner produced an alibi witness, his girlfriend, to testify that he was tending his ice cream store on the date of the burglary. N.T. 12/5/80, 162. Although appellant Murphy testified at the pre-trial hearing that he could not remember where he was on the day of the burglary, N.T. 12/3/80, 46, failure to remember the events of the day in question is not by itself enough to show prejudice. Commonwealth v. Sanders, supra (SPAETH, J., concurring op.).

The second common argument is that the lower court erred in not suppressing evidence of appellants' prior convictions, thereby effectively precluding each of them from taking the stand in his own defense. Appellant Brunner had been convicted of burglary the previous year, Appellant's Brief at 11 (Brunner), and appellant Murphy had been convicted of retail theft and several counts of robbery in 1979, Appellant's Brief at 12 (Murphy). The lower court

[ 305 Pa. Super. Page 417]

    ruled that these convictions would be admissible to impeach appellants' credibility. N.T. 12/4/80, 24-28.

In Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), the Supreme Court listed five factors that should be considered in determining whether a prior conviction is admissible for impeachment. They are:

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness, 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution's case and the prosecution's need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant's credibility.

Id., 482 Pa. at 39, 393 A.2d at 367.

In the footnote the Court added:

4. Here the age of the prior conviction should be considered. Also the nature of the prior offense must be taken into account (e.g. a larceny accomplished by stealth or misrepresentation bears more directly upon veracity than a taking by force, thus the argument for admission is stronger for the former than the latter).

Id., 482 Pa. at 39 n. 4, 393 A.2d at 367 n. 4.

The lower court ruled that evidence of appellant Brunner's prior conviction for burglary would be admissible primarily on the basis of factor four. In its opinion the court explains its ruling by saying, "In the situation before us, the prosecution's case was premised almost entirely on the testimony of the defendant's accomplice in crime, Alice Maxwell. If Alice Maxwell's testimony was not believed by the jury

[ 305 Pa. Super. Page 418]

    the Commonwealth clearly would not have had a case." Slip op. at 7.

We agree that factor four supports the lower court's ruling. The Commonwealth's case against appellant Brunner did depend on the credibility of Ms. Maxwell. Moreover, the conviction did impeach appellant Brunner's credibility, for burglary is by definition accomplished by stealth, and it was only one year old. Appellant suggests that he could have been impeached by showing that "his recollection of the day in question was extremely vague as evidenced by his testimony at the pre-trial hearings," Appellant's Brief at 12 (Brunner), but it is doubtful how effective that would have been. We therefore find that the lower court did not abuse its discretion in ruling that evidence of the conviction would be admissible. Commonwealth v. Herman, 271 Pa. Superior Ct. 145, 412 A.2d 617 (1979) (year old conviction for burglary admissible to impeach defendant since Commonwealth's case consisted of testimony of one witness and alibi was produced at trial).

For the same reasons we find that neither did the lower court abuse its discretion in ruling that evidence of appellant Murphy's conviction for retail theft would be admissible. Although it is true that his convictions for robbery did not bear directly on his veracity, since robbery is a crime of force, see Commonwealth v. Roots, supra, 482 Pa. at n. 4, 393 A.2d at 367 n. 4, the Commonwealth did not seek to use those convictions, N.T. 12/4/80, 25, but rather sought to introduce only the conviction for retail theft, which would impeach credibility. We therefore need not consider the soundness of the lower court's ruling that evidence of the robbery convictions would also have been admissible.

The last common argument is that the evidence was insufficient to support the burglary convictions. In deciding sufficiency, we must view the evidence in the light most favorable to the Commonwealth, since it won the verdict below. It is not our function, but the jury's, to pass upon the credibility of the witnesses and to weigh their testimony.

[ 305 Pa. Super. Page 419]

(1979); Commonwealth v. Barnhart, 290 Pa. Superior Ct. 182, 434 A.2d 191 (1981), provided the jury is properly charged, Commonwealth v. Upshur, 488 Pa. 27, 410 A.2d 810 (1980) (error not to give accomplice charge where evidence against defendant was testimony of accomplice); Commonwealth v. Larew, 289 Pa. Superior Ct. 34, 432 A.2d 1037 (1981) (accomplice testimony must be scrutinized carefully and corrupt source charge given).*fn3 Here, appellants do not argue, nor could they, that the jury was not charged on the corrupt source doctrine. N.T. 12/4/80, 190, 194-195. The jury ...


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