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COMMONWEALTH PENNSYLVANIA v. FRANK TURNER (07/23/82)

filed: July 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK TURNER, APPELLANT



No. 1393 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County at No. 4818 of 1979.

COUNSEL

Douglas M. Johnson, Assistant Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Brosky, Popovich and Montgomery, JJ. Brosky, J., concurs in the result.

Author: Popovich

[ 303 Pa. Super. Page 444]

This is an appeal from the judgment of sentence imposed after a jury trial where appellant, Frank Turner, was found guilty of burglary,*fn1 theft by unlawful taking or disposition,*fn2 receiving stolen property,*fn3 criminal conspiracy,*fn4 and resisting arrest.*fn5 Post-verdict motions were denied, and appellant was sentenced on the burglary conviction to a term of imprisonment of not less than one and one half years nor more than three years. The court suspended sentence on the remaining convictions.

In this appeal, appellant raises four issues. They are: (1) whether the court erred when it allowed testimony concerning a crime for which appellant was not standing trial; (2) whether the court erred when it denied appellant's motion for a mistrial because of the improper remarks made by the prosecutor in closing argument; (3) whether the court erred when it denied appellant's motion to suppress certain identification testimony; and (4) whether the evidence was sufficient to prove his guilt beyond a reasonable doubt. We have reviewed appellant's contentions and conclude that they are without merit.

The basic facts are undisputed. At approximately 6:30 a.m., on August 21, 1979, a burglar alarm from Wanamaker Department Store alerted the Abington Township Police. A

[ 303 Pa. Super. Page 445]

    police officer responded within a minute to the scene and observed a late model Cadillac driving away from the store. The officer pursued the vehicle in a high speed chase, since there were no other vehicles in the area at that time, and the officer was able to see three individuals in the car. As the driver of the suspect car passed directly along the side of the police officer's vehicle, the officer saw the appellant, the driver, who was only ten feet from the police car. From this view, the police was able to formulate a description of the driver, a small individual, approximately 5 feet, 8 inches tall, a black male, with a "hawk-like nose". With the assistance of another police officer, the officers attempted to capture the vehicle. The police activated their sirens until the car crashed. One suspect was apprehended at the scene. However, appellant and a female companion abandoned the car and fled.

Meanwhile, a third officer who had also been dispatched entered the John Wanamaker building. He found that the doors had pry marks on them and were heavily damaged. A crowbar was observed lying on the floor in the area of an empty rack of designer's men's suits. One rack of suits was observed to be empty. The interior of the Cadillac was found to contain designer's men's suits with the "John Wanamaker" tags still affixed to them. A police check on the vehicle identification number of the Cadillac disclosed that the vehicle was owned by Robert Spaddy, who testified at the trial that he reported that his car was missing as of August 15, 1979. Mr. Spaddy identified the Cadillac involved in the high speed chase as belonging to him.

Mr. Spaddy also identified his Pennsylvania Registration License, 0L9476. This license plate was found inside the Cadillac and underneath a pile of Wanamaker suits. The license plate which was found on the car at the time of the chase was Pennsylvania registration 97685U. That license plate was registered to appellant and was issued to a Buick. Records from Harrisburg also established that the above automobile, the Buick with the license plate affixed to the Cadillac and belonging to Frank Turner, had been reported stolen on August 26, 1979.

[ 303 Pa. Super. Page 446]

On August 24, 1979, appellant surrendered himself to the police upon learning that an arrest warrant had been issued for him the previous day. Upon being arrested appellant was questioned and admitted that he knew the female suspect who was alleged to have been in the Cadillac.

During the trial, the prosecution called Robert Spaddy to the witness stand. The defense counsel requested an offer of proof on Spaddy's testimony. An in-chambers conference followed because Spaddy's testimony would establish independently that the vehicle appellant was driving at the time of the crime was stolen. Defense counsel contended that such a reference was an impermissible reference to criminal activity because two charges against appellant, theft by receiving stolen property and unauthorized operation of a motor vehicle, were dismissed since the prosecuting witness failed to appear at the scheduled preliminary hearing. At the end of the conference, the court concluded that the owner of the stolen vehicle could testify.

To begin with, the prosecution argues that appellant has waived the issue of whether the trial court improperly admitted into evidence testimony concerning a stolen vehicle which was used to commit the crime. According to the prosecution, defense counsel conceded that the testimony was relevant to show motive and intent. However, even though the following portion of the record establishes that counsel so conceded the issue, the record also shows that defense counsel nonetheless argued that the testimony was prejudicial and for this reason should have been excluded:

[Defense Counsel]: "I think you put your finger on it, the inference in that you say could possibly be drawn. But my fear is that a very, very great inference that can be drawn is the fact that he stole the car, and he is not on trial for stealing the car, and in fact it's been dismissed. That's the whole purpose of it. Either he participated in this deal, he stole it or participated, and it was stolen for the purpose for which it was used. It is to consider motive and intent. That's what it is admissible for.

[ 303 Pa. Super. Page 447]

THE COURT: This is happening within a short period of time thereof, six days as a matter of fact. The Court will allow his testimony.

(The conference in chambers was concluded. The trial proceeded in the presence of the jury and the Defendant.)"

Trial Transcript at 11-12. (Emphasis added).

In view of the above, we must reject the prosecution's theory of waiver since our reading of the record reveals that appellant's attorney challenged the admissibility of the testimony of Robert Spaddy even though he did not utter the magic words, "I object".

Appellant first contends "that the introduction of evidence as to the theft of the automobile was extremely prejudicial in his case and left the jury with the impression that he had stolen the car or had committed another crime. Said inference was completely unjustified and was not based upon any law." Brief for Appellant at 13. We must reject appellant's contention.

The testimony which appellant challenges was as follows:

"BY MR. WILLIAMSON: [The Prosecutor]

Q Mr. Spaddy, where do you reside?

A Philadelphia, Pennsylvania.

Q What is your address?

A 1611 Chesapeake Place, Philadelphia.

Q Who do you live with in Philadelphia?

A My wife and child.

Q What do you do for a living, sir?

A Postal employee.

Q Are you a letter carrier?

A Letter carrier.

Q Directing your attention to August 15, 1979, did you own a motor ...


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