No. 244 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Allegheny County, at No. CC7903407.
Stanton D. Levenson, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Wieand, Johnson and Montemuro, JJ.
[ 308 Pa. Super. Page 264]
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County on February 17, 1981. The appellant, Richard Allan Wright,
[ 308 Pa. Super. Page 265]
was found guilty by a jury of Theft by Deception*fn1 and Forgery.*fn2 Post-verdict motions were heard and denied and the appellant was sentenced to five (5) years probation. The only issue raised on appeal is that the trial court erred in allowing the admission of improper rebuttal evidence prejudicial to the appellant. We find no merit in the appellant's contention and consequently affirm the judgment of sentence.
The facts giving rise to this case occurred on May 18-19, 1979. On the night of May 18 or the early morning of May 19, a savings account passbook belonging to one Martin Lawrence was stolen from the trunk of his automobile. Mr. Lawrence reported the theft at approximately 8:45 A.M. on May 19. At approximately 9:45 A.M. of that day, the stolen passbook and a forged withdrawal slip in the amount of Five Thousand ($5,000.00) Dollars were presented at the drive-in window of the Shadyside Branch of Equibank to teller, Patricia Hamilton, by the driver of a late model dark car. In the car were the driver, a male passenger in the front and a female passenger in the back. The driver of the car was within four (4) feet of Miss Hamilton and the entire transaction took approximately ten (10) minutes. At trial, Miss Hamilton identified the appellant as the person who presented the passbook. She testified that she specifically recalled the transaction because of the large amount of money involved and because of the large denominations requested by the party.*fn3
The appellant testified that he and his wife left their home in Forest Hills at 9:30 A.M. on May 19 and drove to the office of Ridge Homes in Corapolis, at 10:00 A.M., or
[ 308 Pa. Super. Page 266]
shortly thereafter. The Wrights had an 11:00 A.M. appointment with a sales representative of Ridge Homes to examine blueprints of a house they were purchasing. They remained at the office until around 12:00 P.M., when they returned home. This testimony was corroborated by the appellant's wife and by Donald Burkley, an employee of Ridge Homes, who was present at the office when the Wrights arrived. On cross-examination, the appellant testified that he owned a black Buick and also that, "Nobody ever have [sic] driven my car."
The controversial testimony herein is that of Robert M. Smith, assistant manager of the South Hills Village branch of Equibank. Mr. Smith testified in the prosecution's case-in-chief that at approximately 3:45 P.M. on May 19, the stolen passbook and another forged withdrawal slip were presented to a teller at the South Hills Village Equibank. By this time, bank officers had been alerted that the particular bankbook was stolen. Mr. Smith refused payment and kept the bankbook. He then let the person who presented the passbook out of the bank.*fn4 The prosecution also wished to present Mr. Smith's testimony that after he permitted the third party to leave the bank, he followed the party to the parking lot and observed him entering the passenger side of a late model black Buick sedan. Smith copied down the license number of the vehicle and it was subsequently discovered to be registered to the appellant. The trial court ruled in an in camera pre-trial hearing ...