Appeal from Judgment of Sentence September 16, 1987, in the Court of Common Pleas of Beaver County, Criminal, No. 1520 of 1986.
Dennis M. DiMartini, Monaca, for appellant.
Theresa Dukovich-Ferris, Dist. Atty., Aliquippa, for Com., appellee.
Cirillo, President Judge, and Olszewski and Watkins, JJ.
[ 387 Pa. Super. Page 476]
This is an appeal from a trial court order denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA) and granting appellant the right to appeal nunc pro tunc those issues raised at trial. Appellant presents ten issues for our review:
1. whether the trial court erred in refusing to suppress all evidence, including items seized on August 31, 1986, specifically including the contents of a trash bag located in a garage can under the porch of the parsonage and all testimony regarding the same;
2. whether the trial court erred in refusing to suppress all defendant's statements of September 2, 1986, relating to the items seized from the premises of the parsonage on August 31, 1986;
3. whether the trial court erred in refusing to suppress all items seized on October 24, 1986, during a warrantless search, and all testimony regarding the same;
4. whether the trial court erred in refusing to permit appellant to cross-examine Aaron Blocker (hereinafter "Blocker") regarding his "drug problem" and use of drugs on the night of the incident;
5. whether the trial court erred in refusing to permit appellant to cross-examine Blocker, regarding the status of Blocker's convictions, including retail theft convictions, for the purpose of eliciting Blocker's probation or parole status;
[ 387 Pa. Super. Page 4776]
. whether the trial court erred in refusing to grant a mistrial after the testimony of Solomon Liggett referred to alleged prior criminal activity by appellant;
7. whether any of the counts of criminal mischief and the two counts of institutional vandalism merge for purposes of sentence;
8. whether the sentence pertaining to appellant's conviction of institutional vandalism is illegal in that the sentence exceeds the maximum for the grade of misdemeanor of second degree;
9. whether trial counsel was ineffective for failing to object to cross-examination of appellant regarding his whereabouts after parting company with Reverend Bolden after 12:45 a.m. on August 31, 1986; and
10. whether trial counsel was ineffective for failing to object to cross-examination of appellant regarding the opening of bank accounts in joint name with others, including Debra Hines and the disposition of church collections into one or more of the joint bank accounts.
Because appellant's eighth contention has merit, we amend judgment of sentence.
FACTUAL AND PROCEDURAL HISTORY
During the evening of August 30, 1986, and early morning of August 31, 1986, the Triedstone Baptist Church was vandalized. Pews were broken loose and flipped over; an organ and piano were damaged and the word "E-V-I-L" was scratched into the wood surfaces of the respective musical instruments; a stained glass window depicting the Resurrection was damaged; the glass doors to the sanctuary were damaged; and, an amplifier and six microphones were missing from the sanctuary. In addition, the white powdery substance from a fire extinguisher was sprayed throughout the church. On one of the chairs in the sanctuary, the white powder left the outline of a hatchet. Downstairs in the church, leather chairs used for Sunday School were cut, the doors to the pastor's office and the trustees' office were "broke." Trial transcript at 29. A pay telephone
[ 387 Pa. Super. Page 478]
had been chopped, a water fountain had been damaged, and sinks in the ladies' and men's rooms were plugged with water left running.
On August 31, the damage was discovered by Solomon Liggett, a trustee of the Triedstone Baptist Church, and the police were notified. Upon arrival, Officer Todd inspected the damage while escorted by Mr. Liggett. Thereafter, Officer Boler arrived and observed conditions. While observing conditions, he noticed that the amplifier was missing and, at the same time, a hole was in the stained glass window. Believing that the sound system was thrown through the window, Officer Boler proceeded to the outside of the church and found a garbage can underneath the porch of the adjoining parsonage. Within the garbage can, the officer discovered a garbage bag containing photographs of appellant's family members, envelopes, bank slips and vouchers relating to checking accounts of appellant and a "Janice McBride," and two pairs of shoes, at least one pair of which was covered with a white powdery substance sprayed from a fire extinguisher. One of the bank statements pertaining to Janice McBride was pushed in the toe of a shoe. Officer Boler seized these items and placed them in police custody. At the time of the vandalism and search, appellant had been dismissed as pastor of the Triedstone Baptist Church; however, pursuant to the recommendation of a court appointed moderator,*fn1 appellant was permitted to remain in the parsonage until October 20, 1986.
On October 24, 1986, Sergeant Alston, Mr. Liggett, other church trustees and a locksmith visited the parsonage to prepare lodging for the next pastor. A locksmith was required to unlock the doors because the locks had been changed. Once inside the parsonage, Mr. Liggett identified a metal file cabinet as church property that was normally kept in the pastor's office. Sergeant Alston directed that the file cabinet be opened by the locksmith. Inside the cabinet was a hatchet which matched the outline on the
[ 387 Pa. Super. Page 479]
chair in the church sanctuary. Officer Boler seized the hatchet and also a pair of size 11R boots found in the parsonage. On September 2, 1986, after receiving a call that someone was in the parsonage, Officer Boler went to the premises. At the parsonage, Officer Boler found appellant and asked him whether he had thrown away any of the items he had discovered in the garbage can on August 31. Appellant responded that he was in the process of moving and had thrown away some bank slips and shoes.
Appellant was subsequently charged by criminal information with one count of criminal mischief and two counts of institutional vandalism. Thereafter, trial counsel filed omnibus pre-trial motions, requesting, inter alia, that the trial court suppress evidence seized as the result of the searches conducted on August 31 and October 24. These motions were denied after hearing. On April 6, 1987, following a trial by jury, appellant was found guilty of all charges. After timely post-trial motions were filed and denied, appellant was sentenced to a concurrent term of eight to twenty-three and one-half months imprisonment on counts one and two. In addition, the court imposed a suspended sentence of four years' probation on count three. A motion for reconsideration and modification of sentence was filed and denied. Subsequently, new counsel filed a notice of appeal to this Court and, pursuant to an order of the trial court, filed a statement of matters complained of on appeal. On March 7, 1988, this Court dismissed the appeal without prejudice to appellant's rights under the PCHA for failure to file an appellate brief. On April 14, 1988, and August 8, 1988, appellant filed a PCHA petition.*fn2 After an evidentiary hearing, appellant's PCHA petition was dismissed and the relief requested denied, excepting that appellant was
[ 387 Pa. Super. Page 480]
granted leave to appeal nunc pro tunc those issues raised at trial. This appeal followed.
Initially, we note that appellant's PCHA petition was filed after the effective date of the amendments to the PCHA which has been renamed the Post Conviction Relief Act (PCRA).*fn3 According to the PCRA, all amendments to the PCRA "shall apply to all actions for collateral relief, whether statutory or common law, instituted on or after the effective date of this act, irrespective of the date of conviction or sentence." Historical ...