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COMMONWEALTH PENNSYLVANIA v. RICHARD E. LOWRY (05/10/89)

filed: May 10, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD E. LOWRY, JR., APPELLANT



Appeal from the Judgment of Sentence entered August 11, 1988 in the Court of Common Pleas of Venango County, Criminal Division, at No. S.D. 222, 1987.

COUNSEL

George R. Zaiser, Franklin, for appellant.

Marie T. Veon, Assistant District Attorney, Franklin, for Com., appellee.

Cavanaugh, Del Sole and Montgomery, JJ.

Author: Del Sole

[ 385 Pa. Super. Page 238]

This is an appeal from a judgment of sentence following a jury trial where the Appellant was convicted of: (1) Theft by Receiving Stolen Property, 18 Pa.C.S. § 3925, (2) Removal or falsification of vehicle identification numbers [VIN], 75 Pa.C.S. § 7102(a), (3) Removal or Falsification of VINs with intent to conceal or misrepresent a vehicle's identity, 75 Pa.C.S. § 7102(b), (4) Dealing in vehicles with removed or falsified numbers knowing that the VINs have been removed or falsified, 75 Pa.C.S. § 7103(a), and (5) Dealing in vehicles with removed or falsified VIN with intent to conceal or misrepresent their identity, 75 Pa.C.S. § 7103(b). These convictions stemmed from Appellant's possession of a 1982 BMW which was seized by the police after a patrolman noticed that the VIN plate located on the dashboard of the car appeared to have been installed on the dashboard and was not the original plate issued to the vehicle.

[ 385 Pa. Super. Page 239]

The Appellant, owner of Lowry Auto Wrecking and Salvage Yard, claims on appeal, (1) that the trial court erred in denying Appellant's motion to compel discovery of the exact location of the "confidential" vehicle number, (2) that the trial court erred in failing to grant the Appellant's motion to dismiss under Rule 1100, (3) that he was prejudiced by the Commonwealth's question to a witness suggesting that he had committed other crimes, i.e. the offense of inspecting his own vehicle, (4) that the trial court erred in refusing to grant Appellant's motion for a directed verdict because there was only insufficient, hearsay evidence presented on the issue of whether the vehicle was stolen, (5) that the trial court erred in failing to grant the motion for a directed verdict because the evidence was insufficient on the issue of guilty knowledge, and (6) the evidence was insufficient on the issue of Appellant's intent and guilty knowledge in the removal and falsification of the VIN numbers. We affirm and will discuss each issue seriatim.

In Appellant's Motion to Compel Discovery, he requested the court to order discovery of the location of the confidential number on his car which had been seized by the police. This confidential vehicle number had been communicated to the BMW importer who traced this number to a BMW which had been stolen in Pittsburgh. Appellant stated in his Motion to Compel Discovery, "the Commonwealth should be required to tell the defendant where the number is located so that the defendant can then determine whether the part where the number is located was a part that was replaced in the course of repair by the defendant."

The court refused to grant the motion as to the location of the number on the grounds, "that it is not material to the instant action and therefore not within Pa.R.Crim.P. 305(B)(1), and on the grounds that Defendant has failed to make a showing that such disclosure is reasonable, material to his defense, and in the best interest of justice as required by Rule 305(B)(2)(d)."

Relying on Roviaro v. U.S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) which concerns the disclosure of the

[ 385 Pa. Super. Page 240]

    identity of an informant, and on Roviaro's Pennsylvania progeny such as Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967), the trial court held that a balancing analysis, to determine the propriety of the disclosure, should be applied to this issue. This requires balancing the public interest in non-disclosure against the Appellant's right to prepare a defense. Because the trial court found that Appellant had presented an inadequate basis for disclosure, it held that the public interest outweighed the defense's need for the confidential information.

The trial court noted that the location of confidential numbers are known only to the manufacturer and certain persons concerned with identification of vehicles for insurance or enforcement procedures. Further, the court noted that disclosure of their location would destroy the effectiveness of these numbers in aiding law enforcement, because once this location became known, the confidential numbers would be altered along with the ...


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