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COMMONWEALTH PENNSYLVANIA v. ALPHONZO F. ZABALA (08/06/82)

filed: August 6, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ALPHONZO F. ZABALA, APPELLANT



No. 2270 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 3938 of 1979

COUNSEL

Abraham A. Hobson, III, Norristown, for appellant.

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

Cercone, President Judge, and Wickersham and Brosky, JJ.

Author: Brosky

[ 303 Pa. Super. Page 75]

Appellant was convicted of forgery and theft by deception in connection with purchases he made using Travelers Express Company money orders at various commercial establishments in Lansdale, Montgomery County, on May 12, 1979. His motions for New Trial and in Arrest of Judgment were denied, and sentence was imposed. We affirm.

[ 303 Pa. Super. Page 76]

Appellant raises the following issues on appeal: (1) whether he was denied a fair trial because comments by the Assistant District Attorney and various prosecution witnesses during trial implied that appellant had engaged in prior criminal activity; (2) whether the in-court identifications by the prosecution witnesses should have been suppressed (3) whether the forgery statute (Title 18, Pa.C.S. ยง 4101) can be violated by signing of a fictitious name, and, if so, whether the Commonwealth failed to sustain its burden of proving that the name signed, "Richard Swan," was indeed fictitious; and (4) whether the trial court erred in its instruction to the jury on the elements of theft by deception.

On November 30, 1977, the Gayman Check Cashing Agency, 300 East Tioga Street, Philadelphia, was broken into through a wall which separated it from an adjoining apartment. Seven hundred ninety-seven Traveler's Express money orders were stolen, and the Traveler's Express Company was so notified. We are here concerned with six of these money orders. They were passed on May 12, 1979, at six different stores in Lansdale, Montgomery County. The purchaser identified himself as "Richard Swan" and signed the money orders as such, receiving merchandise and change in return for each. All of the stores attempted to deposit the money orders in their accounts, only to have them returned, payment refused because they were stolen. Store personnel involved in each transaction identified the appellant at trial as the man who had posed as "Richard Swan." Experts testified to the presence of appellant's fingerprints on two of the money orders and to a "high probability" that the signatures were written by the appellant.

Appellant claims to have been prejudiced by comments of the Assistant District Attorney and various prosecution witnesses, which allegedly implied that he had been involved in prior criminal activity. The opening and closing remarks of the Assistant District Attorney are not reflected in the record, so we are unable to evaluate the propriety of the trial judge's denial of defense attorney's motion for mistrial. The appeal briefs for both parties indicate that the

[ 303 Pa. Super. Page 77]

    comments of the prosecutor to which the defense attorney objected were references to the burglary of the Gayman Check Cashing Agency. Evidence of the burglary was necessary to show that the subject money orders did not enter the stream of commerce in a lawful fashion. Furthermore, the trial judge reminded the jury that statements of counsel are not evidence and that the defendant was not charged with stealing the money orders. In view of the foregoing, we find no prejudice to the appellant arising from the comments of the Assistant District Attorney.

The direct examination of Officer Morrison by the Assistant District Attorney, as to whether the officer knew the defendant, was also objected to in a defense motion for mistrial on grounds of prejudice. Rule 1118(b) provides for mistrial, on motion, "[w]hen an event prejudicial to the defendant occurs during trial . . . ." Pa.R.Crim.P. 1118(b). The standard for declaring a mistrial was set out in Commonwealth v. Shepherd, 269 Pa. Super. 291, 409 A.2d 894 (1979): ". . . mistrial is warranted when a juror 'could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.'" Id., 269 Pa. Superior Ct. at 294, 409 A.2d at 895. The facts presented by Officer Morrison's testimony included the assertion that he was the officer who fingerprinted the defendant following his arrest. Therefore, it would be equally as consistent for the jury to infer that the officer knew the defendant because he fingerprinted him as for it to infer that the defendant had previously been involved in criminal activity. Since fingerprinting is commonly known to be routine procedure following an arrest, the officer's testimony could not have been surprising to the jury, nor prejudicial to the defendant. There being no prejudice, the motion for mistrial was properly denied.

Appellant also argues that the trial court erred in denying its motion for mistrial, made in response to the testimony of Detective McCarthy. McCarthy's testimony was similar to that of Morrison; on direct examination, he answered that he knew the defendant and knew where the

[ 303 Pa. Super. Page 78]

    defendant lived.*fn1 The defense objected. Detective McCarthy was the officer who arrested the defendant. The reasonable inference to be drawn from the facts presented by McCarthy was that the detective knew the defendant and knew his address because he arrested him. The defendant would not be in court if someone had not arrested him. Therefore, the detective's testimony was not prejudicial to the defendant and the motion for mistrial was properly denied.

Appellant also claims that the examination of Sarah Gayman*fn2 owner of the check cashing agency from which the subject money orders disappeared, elicited details of the burglary without relevant basis. The testimony allegedly enlarged ". . . the scope of the ...


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