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COMMONWEALTH PENNSYLVANIA v. JOHN GRAVES (07/22/83)

filed: July 22, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN GRAVES, APPELLANT



No. 1400 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, at Nos. 281/283, 285/288.290/292, 294, 295, 297, 301, 303, 305, 306, 308, 311, 313, 314, 316, 317, 319/321, 323, 333, 335, 605, 609/612, 616/619, 623, 625/629, 631, 633, 635, 636, 638, 639/646, 651, 652, 656, 658, 660, 662, 664, 828 June Term, 1977.

COUNSEL

William P. James, Philadelphia, for appellant.

Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Com., appellee.

Cavanaugh, DiSalle,*fn* and Watkins, JJ.

Author: Watkins

[ 316 Pa. Super. Page 488]

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, and involves the defendant-appellant's appeal of his conviction of multiple counts of forgery for his part in an extensive fraudulent check cashing scheme. The defendant was convicted by a jury of 65 counts of forgery. He was sentenced to four (4) to ten (10) years imprisonment by the trial court.

The testimony produced at trial established that Samuel Bruno, Andre Carson, and the defendant engineered an extensive fraudulent check cashing scheme in Philadelphia between 1973 and December of 1976. The actors would obtain unauthorized possession of a group of checks of a corporate checking account holder and forge the checks so that they resembled payroll checks. The payee line and payee endorsement of each of these checks were forged in the name of an individual account holder whose pre-encoded deposit slips had also come into the actors' unauthorized possession. Each of a group of the selected deposit slips would then be forged to reflect a split deposit so that some of the proceeds would be deposited into an account and some of the proceeds of the check would be given to the person presenting it in cash. The checks and deposit slips would then be presented at various branches of the deposit slip account bank by a female accomplice posing as an employee of the corporate entity from whom the forged checks were obtained. The female accomplices would then be driven to a series of bank branches by either Bruno, Carson, or the defendant. Either Carson or the defendant would enter the bank with the female accomplices to make certain that nothing went wrong. Upon completion of the transaction they would leave the bank, destroy the customer receipt, turn over the cash obtained from the bank to the car's driver, and the female accomplice would then be given 30% of the cash as her share. The trial of this case took almost one month as extensive evidence was needed to establish the above mentioned facts.

[ 316 Pa. Super. Page 489]

Defendant's first allegation of error is that the prosecutor committed prosecutorial misconduct entitling him to a new trial. The Commonwealth had entered into various agreements with trial counsel of several Commonwealth witnesses guaranteeing reduced sentences in return for their testimony. Trial counsel were instructed not to inform their clients of the deals, however. Thus, the Commonwealth witnesses were able to testify truthfully that they were aware of no deals made with prosecutors. In this way the Commonwealth attempted to conceal the fact that deals had been made with its witnesses and so avoid the defense impeachment of those witnesses. The court below characterized this conduct as a "fraud on the court". Defendant argues that he should be granted a new trial because of it. However, in the instant case knowledge of the deals became known prior to the trial's conclusion by the witnesses' trial counsel who testified that the agreements for leniency had been made. We agree with the lower court that this enabled the jury to assess the credibility of the Commonwealth witnesses and sufficiently mitigated any prejudice which might have been caused by the Commonwealth's improper conduct. See U.S. v. Harris, 498 F.2d 1164 (3rd Cir.) cert. denied, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 665 (1974).

Next, defendant claims that there was insufficient evidence produced at his trial to sustain his conviction. We do not agree. The evidence of record clearly establishes defendant's participation in the fraudulent check-cashing scheme. Defendant argues that he was improperly convicted on the theory of accomplice liability. This contention is without merit. In order to convict a defendant of conspiracy a factfinder must conclude that he reached an agreement with a co-conspirator to commit the crime. In order to establish defendant's guilt on an accomplice theory, an agreement is not required, as only aid is required. 18 Pa.C.S.A. 306; Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978). The least degree of concert or collusion in the commission of the offense is sufficient to sustain a

[ 316 Pa. Super. Page 490]

    finding of responsibility as an accomplice. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). Viewed in the light most favorable to the verdict winner (in this case -- the Commonwealth) the evidence establishes the defendant's participation and aid in the commission of the various offenses involved in the fraudulent check-cashing scheme.

Next, the defendant claims that his right to a fair trial was violated by the prosecutor when the prosecutor, in his summation to the jury, referred to an incriminating statement given by the co-defendant Carson. During his summation, however, the prosecutor scrupulously redacted Carson's statement to avoid any reference whatsoever to the defendant or to Bruno. The prosecutor stated that, "this is what Carson says about himself", in referring to the statement. Moreover, the trial court instructed the jury quite thoroughly on the applicability of Carson's statement thereby curing any problems with the prosecutor's remarks. Under these circumstances the prosecutor's argument did ...


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