No. 175 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal, at No. 1796 of 1978.
William R. Bernhart, Reading, for appellant.
J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cavanaugh, Montemuro and Hester, JJ.
[ 327 Pa. Super. Page 523]
Gerald Joseph Mason was convicted by a jury in the Court of Common Pleas of Montgomery County of burglary*fn1 and criminal mischief.*fn2 Following the denial of timely post-trial motions, he was sentenced to imprisonment for a term of not less than six (6) years, nor more than twenty (20) years on the burglary conviction. For his conviction of the crime of criminal mischief, he received a sentence of three (3) years probation. He was also ordered to pay the costs of prosecution and to make restitution. This appeal followed.
[ 327 Pa. Super. Page 524]
The intricate and detailed web of circumstantial evidence spun by the prosecution took three (3) days and over three hundred (300) pages of testimony to complete. The effectiveness of this web, ascribable in no small part to the inexorable and exceedingly professional police investigation, is evidenced by the ensnarement of appellant upon the finding of guilt by the jury. A meaningful understanding of the issues briefed and argued by appellant in this appeal, as well as our discussion of those issues, necessitates a summarization of the events which ultimately led to the appellant's arrest.
At some time during the early morning hours of April 4th, 1978, a McDonald's restaurant, located on Route 73 in Douglas Township, Montgomery County, was burglarized. Detective John Crowley, a county detective in the employ of the District Attorney of Montgomery County, arrived at the crime scene at 7:45 A.M. that same morning. His investigation revealed that the restaurant's safe had been "burnt" or "torched" open. An opening of approximately seven (7) inches in width by ten (10) inches in height had been cut around and completely through the dial of the safe. The detective was able to observe that the safe was charred and that black soot stains appeared on most of the interior walls. The intruders who performed the laser-like surgery on the safe left their victim in complete disarray. Strewn about were numerous papers and a number of rolls of pennies in open-ended wrappers. The coin wrappers were stained with soot and intermittently burnt. The very end coins in the rolls of pennies were stained, charred and blackened. Several plastic cash register drawers, parts of which had melted from the heat of the intruder's torch, as well as slag balls, were also observed by Crowley's investigative eyes. The area outside the safe was also, as we shall see, a source of evidence left behind by not-so-clever thieves. A large green pail with water was positioned in front of the safe; they were, after all, burglars -- not arsonists.
[ 327 Pa. Super. Page 525]
With an uncharacteristic display of concern for tidiness, the miscreants had opened a cardboard box and laid it flat on the floor outside the safe. The cardboard's surface was observed by Crowley to have numerous shoe or boot prints which in turn contained many small circles running from left to right. All of the evidence, both inside and outside the safe, was confiscated by the detective. Before leaving the scene of the burglary, Detective Crowley broadcast a radio message concerning the burglary, as well as a bank alert notifying numerous banks in the area to be on the lookout for burnt or scorched money, bills or coins.
Prior to Detective Crowley being apprised of the burglary, other events had already taken place; events which would later become part of the web of evidence. At approximately 3:45 A.M. on the morning of April 4th, four hours before Crowley arrived on the scene, a Douglas Township police officer and a truck driver for a dairy farm, observed an automobile pulling onto the highway from a driveway adjacent to the burglarized McDonald's. The police officer was in his police vehicle and the truck driver was in his truck when they independently made the same observation at about the same time. They both agreed it was a "late model, Lincoln Continental, in the late seventies." The police officer thought the vehicle was dark brown and the truck driver thought it was black. The milktruck driver remembers that it had a vinyl top; he only saw a driver. The police officer saw a driver and a passenger. As we shall see, at the time of his arrest, appellant owned a 1975 black Lincoln Continental with a vinyl top.
The web continues to spread. On April 5th, 1978, an unidentified blonde woman who styled her hair with a single "pigtail" running from the top of her head down the middle of her back -- a coiffure relevant only for its later evidentiary value -- entered the American Bank in Temple, Pennsylvania, a suburb of the city of Reading in Berks County. The young woman, whose photograph was later discovered and taken by the police from the appellant's apartment, exchanged one hundred one dollar bills and one hundred
[ 327 Pa. Super. Page 526]
dollars in wrapped quarters and dimes for two one hundred dollar bills. The bank teller, mindful of the bank alert sent out by Detective Crowley the previous day, discerned scorches and burnt edges on several of the one dollar bills and her olfactory sense enabled her to perceive that the money had an unusual odor. The wrappers containing the coins were stamped with appellant's name and address, i.e., Gerald Mason, 440 Oley Street, Reading, Pa. Detective Crowley was notified of the currency exchange and on the same day, April 5th, he went to the American Bank, interviewed the bank teller, received a description of the young lady who requested the exchange, and confiscated the money as evidence.
On April 6th, 1978, two days after the McDonald's burglary in Montgomery County, police officer Robert Kopinski of Coal Township in neighboring Northumberland County, was conducting a routine investigation of an open door of a motorcycle shop located on Route 61. No cause for alarm -- Officer Kopinski learned that an errant worker had inadvertently left the door open. While inside the motorcycle shop, Officer Kopinski observed a late model car on Route 61 acting in a suspicious manner. Specifically, he observed the vehicle traveling at a slow rate of speed toward the motorcycle shop, then he saw it enter the parking lot of the motorcycle shop, drive out of the parking lot and proceed back up Route 61 from whence it came. Still under the watchful eye of the police officer, the vehicle then turned into the parking lot of a McDonald's restaurant and in a short while it drove out of the restaurant parking lot, crossed all four lanes of Route 61 and pulled into the parking lot of a closed gas station. The driver of the vehicle got out of the car and ran across the highway toward the closed McDonald's restaurant.
Officer Kopinski left the motorcycle shop and went to the McDonald's restaurant. His investigation of the restaurant revealed that the doors had been partially jimmied open. He immediately requested assistance from all other local police departments in the area. A search of the restaurant's
[ 327 Pa. Super. Page 527]
parking lot turned up a bag -- Officer Kopinski called it a gym bag -- which contained a crow bar, screw drivers and other tools. In the vicinity of the restaurant's garbage container, the police found a duffel bag containing acetylene torches, a sledge hammer and, in close proximity to the duffel bag, a set of oxygen tanks for the torches; clearly not the kind of equipment used in preparation of the world-famous "big Mac." A further search of the area failed to turn up the burglars whose unlawful intrusion had been interrupted. Officer Kopinski then sent or had sent a teletype message requesting information on the vehicle still positioned on the gas station lot, dutifully waiting to carry away its owner and McDonald's restaurant's money. He soon learned that the vehicle, or one similar to it, was wanted for investigation of a burglary of a McDonald's restaurant in Coal Township, Montgomery County, and further that it was owned by the appellant.
Officer Kopinski's fellow officer, Charles Shuey, left him at the restaurant with the restaurant manager who had been summoned to the scene, and crossed the highway to investigate the automobile. He observed that it was a two-door, 1975 black Lincoln Continental with a vinyl top. No one was in the car. The officer noticed that the trunk lid was slightly ajar and aware of the message received by Kopinski concerning the use of a similar car in the Montgomery County burglary, the officer lifted the trunk lid to see if anyone was hiding therein. He observed a small shotgun and what appeared to be a canvass bank bag. Without touching anything, he closed the trunk. The car was ordered to be towed to the Coal Township police station in Northumberland County. As we shall see, the appellant says this investigation of the car, while on the lot of the closed gas station in the early hours of the morning, across the street from the McDonald's restaurant, where a burglary had been aborted, was illegal.
We move now to the next phase of this early morning drama unfolding on the nearly deserted highways and byways of a rural community whose inhabitants were enjoying
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a nocturnal slumber never knowing that the peace and dignity of their community had been violated.
Trooper Richard L. Ziminsky, of the Pennsylvania State Police, assigned to the Shamokin Barracks in Northumberland County, went on duty at 6:00 A.M. on the morning of April 6, 1978. He was told to patrol the area south of Shamokin for two possible burglary suspects of the McDonald's restaurant on Route 61. The trooper began patrolling on Route 61 and entered the driveway of the Northumberland County Democratic headquarters building. The building was situated about 300 yards off the highway in a wooded, secluded area and was located approximately a mile and one-half from the aborted burglary. Appellant will tell us later that the trooper should never have conducted a search of the Democratic headquarters and the area surrounding the building -- forget the fact that he was patrolling the area in search of burglary suspects. We, on the other hand, view the trooper's investigation of the area as a prudent and professional course of police action -- but for now, let us rejoin Trooper Ziminsky. As he drove his vehicle toward the closed Democratic headquarters, he saw a man flee from behind the building. He immediately relayed his observation to his desk officer in the barracks, who in turn notified Officer Kopinski, who was still at the scene of the attempted burglary, that the state trooper was at the Democratic headquarters and in the process of apprehending a suspect. The trooper alighted from his vehicle and called three times for the running suspect to stop. After his third command to stop, the trooper observed the suspect attempting to climb a shale bank. Again, he ordered the suspect to stop. Realizing that his voice commands were not producing the desired result, the trooper fired a warning shot with his service revolver. The crackling effect of his explosion which propelled the missile into the approaching dawn caused the fleeing suspect to stop, change direction, and after some mini-gyrations to his right, he finally approached the trooper with his hands in the air. The trooper ordered the suspect to prostrate himself on the
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ground as the trooper covered him with his revolver. Kopinski, who arrived at the Democratic headquarters at this juncture, secured the man's hands with handcuffs and took him into custody. Appellant says this police action constituted an arrest. We agree. With characteristic gall, he says it was an arrest without probable cause.
A further search of the area in the immediate vicinity of the Democratic headquarters was conducted and appellant's accomplice, Rico Kelino, was found hiding behind a pillar.*fn3 He was pointing a gun at the officers but responded affirmatively to the state trooper's command to drop the gun and surrender with his hands in the air. He, too, was taken into custody by Officer Kopinski. Both appellant and his accomplice were given their Miranda*fn4 rights by Kopinski when they were taken into custody.
By way of pertinent aside, we should mention two other happenings which have at least tangential relevance to this case. First, Officer Kopinski said that at about 5:30 A.M. -- a half hour before the state trooper began his tour of duty -- he was in the Coal Township police station assembling all of the evidence he had gathered from the scene of the attempted break-in of the McDonald's restaurant. While there, he received a telephone call from a woman who lived between the restaurant and the Democratic headquarters. The woman told him she had seen two men attempting to break into a car. Secondly, both Officer Kopinski and Trooper Ziminsky said they observed that a window at the rear of the Democratic headquarters building had been broken and a telephone was seen hanging from the window.
Following a slight intermission, the final act in this drama begins. The police in Coal Township, Northumberland County, informed Detective Crowley of Montgomery County that they had arrested appellant and Kelino for the attempted burglary of the McDonald's restaurant in their
[ 327 Pa. Super. Page 530]
county. Detective Crowley arrived at the Coal Township police station at approximately 9:00 A.M. that same morning, April 6, where he saw, for the first time, appellant and Kelino. He identified himself, read them their Miranda rights and informed them he wanted to question them about the burglary of the McDonald's restaurant in Douglas Township, Montgomery County, on April 4, 1978. They gave Crowley their names and said they both lived at 440 Oley Street in Reading, Berks County. That was as much as they would say.
Appellant's vehicle had been towed to the Coal Township police station. While Crowley was at the police station, he observed a search of appellant's car made pursuant to a search warrant prepared and executed by the police of Coal Township. As a consequence of that search the following items were seized from appellant's vehicle: a sawed-off Remington .12 gauge pump-action shotgun, two tanks for cutting or welding, approximately six (6) pairs of work gloves, a 3/8" Black and Decker drill and the appellant's owner's card. The ever-alert Detective Crowley also observed that the jacket Kelino was wearing had numerous small burnholes down the front and on one arm of the jacket. He also saw various denominations of paper currency totaling nine hundred ten dollars ($910.00) and, of that, a twenty dollar ($20.00) bill and a five dollar ($5.00) bill were singed or scorched. This money had been taken from Kelino by the Coal Township police. Crowley then made an even more important and startling observation -- a catastrophe for appellant; the sole of one of appellant's boots had a pattern which appeared to be identical to the pattern impression he had seen on the piece of cardboard in front of the burglarized safe at McDonald's restaurant in Montgomery County. He asked appellant to remove his boots but appellant refused. Crowley then told police officer Richard Higgins of Coal Township, who by this time had assumed charge of the attempted burglary in Northumberland County, of the similarity of pattern. Higgins told Crowley that they also had footprints in the area of the attempted burglary.
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Chief Weaver of the Coal Township police directed one of his officers to remove appellant's boots. Mission accomplished.
That same morning, April 6th, Detective Crowley prepared a search warrant for appellant's apartment, 440 Oley Street in Reading, Berks County, setting forth in the probable cause section of the warrant essentially all of the facts as we have attempted to describe them to this point. The warrant was issued by District Justice George Graeff in Reading, Berks County, and at 5:20 P.M. on April 6th, 1978, Crowley, Chief Hummel and Sergeant Stofflet, all law enforcement officers of Montgomery County, conducted a search of appellant's apartment. They were accompanied by Detective Loren Young and Officer Wright of the Reading Police Department. As a consequence of that search, the following items were removed from appellant's apartment: a rubber stamp that left an impression of appellant's name and address; a photograph of two young white women standing on either side of a mounted trophy fish, one of the women wearing her blonde hair styled in a pigtail; a grey metal cash box found under appellant's bed which contained numerous coin wrappers and coins; and a one-gallon metal bucket that contained twelve (12) rolls of wrapped pennies. Crowley observed that some of the coins had black stained surfaces. At the suppression hearing, Detective Crowley testified on direct examination that the Reading police officers did not participate in the search, although they were inside the apartment. Appellant will later argue that since Crowley, a Montgomery County Detective, had no authority to conduct a search of appellant's apartment in Berks County, the search was illegal and the items seized should have been suppressed.
On April 8th, 1978, four days after the burglary of the McDonald's restaurant in Douglas Township, Montgomery County, Detective Crowley went to the Northumberland County Prison and executed properly issued warrants of arrest upon appellant and Rico Kelino. They were both informed of their Miranda rights and told they were being
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arrested for the burglary of the McDonald's restaurant in Montgomery County, which occurred on April 4th, 1978.
At trial, in addition to all that we have related so far, the jury would also hear the testimony of the bank teller and three agents from the Federal Bureau of Investigation. The bank teller testified that the young blonde woman in the photograph taken from appellant's apartment was the same young lady who had exchanged the currency in the American Bank on April 5th, 1978. The F.B.I. agents would offer testimony concerning the rubber stamp and coins found in appellant's apartment as well as testimony concerning appellant's boots and the impressions left on the cardboard.
With all of this evidence, albeit circumstantial, the jury understandably found appellant guilty of the crimes charged.
Appellant alleges certain claims of error, some made at the suppression hearing and others made at trial, which are completely devoid of merit, unsupported by the record, adequately disposed of in the opinion of the lower court,*fn5 and deserving of no further discussion. They are:
1. That the trial judge erred in refusing to grant a motion for a mistrial and in allowing evidence showing unrelated crimes in other counties;
2. That the trial judge erred in his instructions to the jury concerning reasonable doubt and ...