No. 584 PITTSBURGH, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County, No. 589 of 1980.
John Bozza, Erie, for appellant.
Paul J. Susko, Assistant District Attorney, Erie, for Com., appellee.
Hester, McEwen and Johnson, JJ.
[ 316 Pa. Super. Page 185]
Appellant was arrested and charged with tampering with witnesses and informants*fn1 and criminal conspiracy.*fn2 On September 12, 1980, following a jury trial in the Court of Common Pleas of Erie County, appellant was found guilty on both counts. Timely post-verdict motions were filed and denied. Appellant was thereafter sentenced to a period of not less than one (1) nor more than two (2) years. This sentence was to be concurrent with a sentence she received from a conviction by a jury on June 20, 1980, of two counts of hindering apprehension or prosecution.
From the judgment of sentence, appellant brings this appeal. Appellant raises three issues: 1) whether appellant's trial subjected her to double jeopardy based upon a previous trial and conviction on June 18-20, 1980; 2) whether the evidence was sufficient to support the verdict; and 3) whether the Commonwealth established a prima facie case against appellant at the preliminary hearing.
The facts are as follows:
On June 18-20, 1980, appellant was tried and convicted of two counts of hindering apprehension or prosecution.*fn3 Evidence at this trial demonstrated that appellant had removed from her residence approximately seventy-five (75) to one hundred (100) photographs of children in nude or sexually explicit poses. On February 15, 1980, she requested William Robson, Faith Robson, and Tina McCarter to accompany her to her house where she obtained the package of photographs. These photographs were to be used in the prosecution of her husband, Donald, for the alleged corruption of minors and sexual abuse of children. These charges had been brought against appellant's husband on January 28, 1980 and February 5, 1980.
[ 316 Pa. Super. Page 186]
Appellant then proceeded to the Robson's residence where the photographs were destroyed by burning and cutting into pieces. The witnesses at the Robson's home later identified two of the children, one age eleven (11) and another age thirteen (13), who appeared either nude or in sexually explicit poses in the photographs. Following the destruction of the photographs, appellant stated to one Cheryl Start, that "Donny (appellant's husband) said she had to get rid of the pictures, and she (appellant) didn't want the police or Children's Services to find them." Also, when Ada Robson, another witness, advised appellant that she was calling the police, appellant specifically directed her not to do so.
Regarding appellant's conviction on September 12, 1980, which is the subject of this appeal, the Commonwealth's evidence dealt again with the securing of the photographs at appellant's residence on February 15, 1980, and their subsequent destruction at the Robson's residence. In fact, all six (6) witnesses who either testified or whose testimony was stipulated to, also testified at appellant's June trial.
Appellant first contends that her September 11-12, 1980 trial subjected her to double jeopardy. We will first consider whether appellant has waived this issue. Appellee and the lower court postulate that appellant waived her double jeopardy appeal by not raising this issue until the filing of her ...