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05/09/97 COMMONWEALTH PENNSYLVANIA v. EUGENE L.

May 9, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
EUGENE L. COON, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Westmoreland County, Criminal Division at No. 115 C 1995. Before McCORMICK, J.

Before: Popovich, Johnson and Hester, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

FILED: May 9, 1997

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Westmoreland County following appellant's conviction on the charges of disorderly conduct (a misdemeanor of the third degree) and harassment (a summary offense) Herein, appellant contends the following: (1) The information should have been quashed because there was a fatal variance between the complaint and the information; (2) The evidence was insufficient to sustain his conviction on the charge of disorderly conduct as a misdemeanor of the third degree; (3) The verdicts were inconsistent; (4) The trial court erred in permitting David Werner, Sr., to testify that he was a "mean drunk" and to testify regarding his quality of driving prior to the incident; (5) The trial court erred in permitting Police Officer Kenneth Karras to testify that a furrow found in the ground at the scene of the incident was consistent with the mark of a bullet; (6) The trial court erred in preventing him from testifying as to an alleged extortion; (7) His sentence was illegal in that the trial court failed to follow the sentencing guidelines, failed to merge the charge of harassment with the charge of disorderly conduct, and imposed illegal conditions. We vacate the judgment of sentence and remand for resentencing.

The relevant facts and procedural history are as follows: During the afternoon of November 6, 1994, appellant was at his home in Stahlstown, Pennsylvania, attempting to take a nap. He was unable to sleep due to noise created by gunfire. Approximately seven hundred feet from appellant's residence, his neighbor, Gary Klein, was hosting a birthday party for his four-year-old son. During the party, Mr. Klein and some of his guests engaged in target shooting practice on Mr. Klein's private property. Becoming frustrated by the noise and his inability to sleep, appellant shot approximately four bullets in the direction of the shooting range. Approximately two bullets passed above the party-goers' heads into a cluster of trees. Two of the party-goers were struck by tree bark dislodged by the bullets. The party-goers became frightened and took refuge behind a building. Another bullet was shot and struck the ground. Believing that the bullets had been fired from appellant's property, one of the party-goers, David R. Warner, Sr., approached appellant's residence. Mr. Warner engaged in a conversation with appellant wherein appellant stated, "I taught Gary a fucking lesson. I took a 30 aught 6 and shot a couple of rounds over his head...now I have to clean the fucking gun." N.T. 11/20/1995 p. 36. Mr. Werner then specifically asked appellant if he was the person who had fired the shots. Appellant responded, "Yeah, it was me." N.T. 11/20/1995 p. 36. Mr. Werner returned to the party and reported his conversation with appellant to the other party-goers. Appellant then fired another bullet. Appellant was familiar with the shooting range's location.

Following a non-jury trial, appellant was convicted of disorderly conduct as a misdemeanor of the third degree and harassment. On his conviction for disorderly conduct, appellant was sentenced to one year of intensive probation, including six months of electronic monitoring, and work release so as to continue his employment as Sheriff of Allegheny County. He was also ordered to undergo a drug and alcohol evaluation, to pay the court costs and fees, to have no contact with the victims, to attend a minimum of two alcoholic anonymous meetings per week, to stay away from his residence in Stahlstown, Pennsylvania and to refrain from any political activity. On his conviction for harassment, he was fined $200.00 plus costs. Appellant filed post-sentence motions which were denied. This appeal followed.

Appellant's first contention is that the information should have been quashed because there was a fatal variance between the criminal complaint and the information. In this case, after the filing of the criminal complaint, which charged appellant with disorderly conduct as a summary offense, appellant waived his right to a preliminary hearing. The case was transmitted to the district Justice, who docketed the disorderly conduct offense as a misdemeanor of the third degree. Thereafter, the district attorney prepared an information charging appellant with disorderly conduct as a misdemeanor of the third degree, and the trial Judge who heard the evidence found appellant guilty of the offense. Appellant argues that it was improper for the district attorney to upgrade the disorderly conduct charge without leave of court or the issuance of new process. We find that appellant has failed to preserve this issue for review.

Pa.R.Crim.P. 225(b)(5) governs the filing, content, and function of an information. Specifically, Rule 225 provides the following:

(a) After the defendant has been held for court, the attorney for the Commonwealth shall proceed by preparing an information and filing it with the court of common pleas.

(b) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:

(5) a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint....

Counsel for appellant concedes that he received a copy of the information dated March 9, 1995, well before appellant's trial commenced. However, he did not challenge the validity of the information until November 22, 1995, after the Commonwealth completed its case-in-chief at trial. The record reveals that counsel failed to file an omnibus pretrial motion to quash the information. "A request to quash an information must ordinarily be made in an omnibus pretrial motion for relief or it is considered waived. Consequently, this issue was not preserved for review." Commonwealth v. Rishel, 441 Pa. Super. 584, 658 A.2d 352, 358 (1995), rev'd on other grounds, 546 Pa. 48, 682 A.2d 1267 (1996) (citations omitted). See Pa.R.Crim.P. 306.

Appellant's next argument is that the evidence was insufficient to sustain his conviction on the charge of disorderly conduct as a misdemeanor of the third degree. "In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt." Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699, 702 (1989) (citations omitted). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Sanders, 426 Pa. Super. 362, 627 A.2d 183, 185 (1993) (citation omitted) Although a conviction must be based on "more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty." Commonwealth v. ...


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