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COMMONWEALTH PENNSYLVANIA v. FREDERICK D. DUDEN (03/16/84)

filed: March 16, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
FREDERICK D. DUDEN, JR., APPELLANT



No. 588 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Trial Division, Nos. 1326-1329, October Term, 1980.

COUNSEL

Gilbert E. Toll, Philadelphia, for appellant.

Carolyn E. Alden, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

McEwen, Beck and Montemuro, JJ. McEwen, J., files concurring statement.

Author: Montemuro

[ 326 Pa. Super. Page 78]

This is an appeal from the judgment of sentence imposed on the appellant, Frederick Duden, Jr., by the Court of Common Pleas of Philadelphia County, per the Honorable Lynne M. Abraham. The appellant was convicted in a jury trial of forgery,*fn1 theft by deception,*fn2 theft by failure to

[ 326 Pa. Super. Page 79]

    make required disposition of funds received,*fn3 and theft by unlawful taking.*fn4 The post-verdict motions in arrest of judgment and for a new trial filed by the appellant were denied by the court. The appellant was subsequently sentenced to three and one-half (3 1/2) to seven (7) years imprisonment and ordered to pay six thousand dollars ($6,000.00) on the forgery charge, and sentenced to three and one-half (3 1/2) to seven (7) years imprisonment on each of the theft charges. The sentences for theft were to be served concurrently with each other, but consecutive to the sentence for forgery. The appellant filed a petition to modify sentence which was denied. This appeal followed.

The appellant raises the following issues herein:

A. The sentence imposed by the court was illegal and improper.

B. The imposition of consecutive maximum sentences was manifestly excessive, and illegal.

1. Ineffectiveness of former counsel.

C. The prosecutor improperly commented on the appellant's failure to take the witness stand.

D. The Commonwealth failed to establish the jurisdiction of the court beyond a reasonable doubt.

E. The trial court erred in not holding a hearing on the admissibility of appellant's bank records seized by the Commonwealth pursuant to a search warrant.

F. The seizure of appellant's bank records was invalid and illegal per se.

G. The Commonwealth failed to prove by competent evidence that the $6,000.00 check payable to St. Joseph's Home was deposited in the appellant's account.

1. The trial court improperly allowed Ruth Cliggett, a record custodian, to offer opinion testimony.

2. Physical evidence consisting of the deposit slip and Mrs. Cliggett's testimony in connection therewith violated the Best Evidence Rule.

[ 326 Pa. Super. Page 803]

. Ineffectiveness of former counsel.

H. The appellant was denied a fair trial by having to defend a multiplicity of theft charges although he was alleged to have committed a single theft.

1. Ineffectiveness of former counsel.

We have carefully reviewed each of the appellant's arguments and find they are without merit except that only one sentence should have been imposed for theft. We also note that in arguments C, D and E, the appellant attempts to tack on claims of ineffectiveness of counsel without presenting them in the statement of questions presented. These claims are waived under our appellate rules, Pa.R.A.P. 2116, and will not be further discussed.

The facts relevant to the present appeal are as follows: The appellant was, prior to his disbarrment in 1977, an attorney representing, among others, the St. Joseph's Home for Homeless Industrious Boys (St. Joseph's). On June 26, 1976, one Sarah E. Morawski died testate in Massachusetts. She named St. Joseph's as a beneficiary of her estate. Specifically, St. Joseph's was named as one of many residuary legatees. Its share would amount to some $15,600.00. The administrators of the estate sent notice of the bequest to St. Joseph's, and the notice was referred to the appellant in his capacity as attorney for the home. Thereafter, the appellant sent a letter to the administrators advising them that he represented St. Joseph's and requesting a copy of the Morawski will. Appellant also directed the administrators to send all future correspondence and papers directly to the appellant.

On January 30, 1977, a check made payable to St. Joseph's in the amount of $4,000.00 was sent by the administrators directly to St. Joseph's. In accordance with its standard practice, the check was received by the bookkeeper, Edith Hynes; endorsed with a rubber stamp; and deposited into the St. Joseph's account in Central Penn National Bank.

[ 326 Pa. Super. Page 81]

On August 15, 1978, the administrators mailed a second check made payable to St. Joseph's in the amount of $6,000.00. This check was mailed to the appellant.

On February 11, 1980, the administrators requested a release from St. Joseph's for the $10,000.00 already received in order that the final distribution could be made. At this time, Father Francis Duffy, pastor and administrator of St. Joseph's, informed the administrators of the estate that the second check had never been received.

After investigation by the police, the appellant's bank records were seized pursuant to a search warrant. The records showed that on September 7, 1978, a deposit of four checks totaling $6,336.20 was made into the appellant's account in Girard Bank. The deposit ticket, pre-printed with the appellant's name and address, showed that one of the checks was for $6,000.00. Microfilm bank records demonstrated that the $6,000.00 check was the Morawski estate check. When the deposit was made on September 7, 1978, the appellant's balance was $110.59. By September 11, 1978, the appellant's balance was $10.64. None of the checks drawn on the account in the interval between September 7 and 11, 1978, was made payable to St. Joseph's.

We now proceed to the disposition of the issues before us, beginning with the appellant's allegation that the sentence was improper and an abuse of discretion because it was based on numerous factors which were improperly considered by the trial court. Specifically, the appellant contends that the trial judge erred in considering: (1) her belief that the appellant had hidden assets; (2) the testimony of the appellant in other cases;*fn5 (3) other unspecified cases "which [had] been brought to [her] attention;" (4) communications with a former associate of the appellant; and (5) the appellant's failure to conclude a monetary settlement with the complainant.

[ 326 Pa. Super. Page 82]

A sentence is invalid if it reasonably appears from a review of the entire record that the sentencing court may have relied in whole or in part on an impermissible consideration. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977); Commonwealth v. Russo, 297 Pa. Super. 424, 444 A.2d 105 (1982); Commonwealth v. Schwartz, 275 Pa. Super. 112, 418 A.2d 637 (1980); Commonwealth v. Cruz, 265 Pa. Super. 474, 402 A.2d 536 (1979). "However, when a defendant fails to make a timely objection in the sentencing court, he waives the issue." Commonwealth v. Cruz, id. 265 Pa. Super. at 477, 402 A.2d at 537. See also, Commonwealth v. Shoemaker, 462 Pa. 342, 341 A.2d 111 (1975). Herein, no objection was raised by the appellant to any of the allegedly impermissible considerations -- ...


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