Com. v. Babbs

• Decision Date: 18 October 1985
• Citation: 499 A.2d 1111,346 Pa.Super. 498
• Parties: COMMONWEALTH of Pennsylvania v. Daryl BABBS, Appellant. 710 Pittsburgh 1984
• Court: Pennsylvania Superior Court

Page 1111

499 A.2d 1111

346 Pa.Super. 498

COMMONWEALTH of Pennsylvania v. Daryl BABBS, Appellant.

710 Pittsburgh 1984

Superior Court of Pennsylvania.

Submitted April 9, 1985.

Filed Oct. 18, 1985.

Mitchell A. Kaufman, Asst. Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before WIEAND, JOHNSON and MONTGOMERY, JJ.

WIEAND, Judge:

The principal issue in this appeal is whether a criminal defendant's failure to appear for trial, without evidence of flight or concealment, is sufficient to permit a fact finder to infer a consciousness of guilt. The trial court, over defense objections, allowed evidence that appellant had failed to appear on a prior trial date and then instructed the jury that it could infer a consciousness of guilt from this evidence. We conclude that this was error. Therefore, we reverse and remand for a new trial.

At or about 1:00 p.m. on October 14, 1982, Jesse Johnson, an unlicensed taxi (jitney) driver picked up a passenger, whom he identified at trial as Daryl Babbs, at the corner of Herron and Wylie Avenues in the City of Pittsburgh. At his passenger's request, Johnson drove into an alley known as Sharp Way. There, the passenger produced a handgun and demanded Johnson's money. When Johnson attempted to exit the taxi and escape, the robber grabbed for and was able to extract Johnson's wallet. Johnson, yelling for help, ran down the alley. Patricia Javersack, whose home adjoined the alley, heard Johnson's cries for help and came into the alley. There she observed a tall, slender, dark, black man, who she was "pretty sure" was Babbs. She asked him what was wrong; whereupon, he responded that Johnson apparently needed help. Mrs. Javersack then returned to her home and called the police. The man later identified as Babbs entered the cab and drove away. Later, she found Johnson's wallet in the alley. Johnson testified that following the robbery he saw Babbs twice but did not call the police. When he saw Babbs a third time on October 21, 1982, he called the police because of pressure from other jitney drivers and because he feared that Babbs, if not stopped, would seriously injure someone. Babbs denied any involvement in the robbery and testified that he had been "housebound" because of abdominal surgery, made necessary by a stab wound, from October 6 until October 21. The day of his arrest, he said, had been the first day on which he had ventured from his home.

This evidence was sufficient to sustain the jury's verdict of guilty, and the trial court properly refused to set it aside on Babbs' motion in arrest of judgment. In Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979), the Supreme Court said:

It is the responsibility of a reviewing court, in evaluating the sufficiency of the evidence to support the verdict of guilt, to view the testimony in a light most favorable to the Commonwealth, as verdict winner, to accept as true all evidence and all reasonable inferences upon which, if believed, the factfinder could have properly based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.

Id. at 540, 412 A.2d at 1364. Accord: Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984); Commonwealth v. Tribble, 502 Pa. 619, 621, 467 A.2d 1130, 1131 (1983); Commonwealth v. Carpenter, 330 Pa.Super. 382, 384, 479 A.2d 603, 604 (1984); Commonwealth v. Riley, 330 Pa.Super. 201, 207, 479 A.2d 509, 512 (1984); Commonwealth v. Vazquez, 328 Pa.Super. 86, 89, 476 A.2d 466, 467-468 (1984).

Appellant argues that the evidence identifying him as the robber was vague, uncertain and contradictory and, therefore, insufficient to prove beyond a reasonable doubt that he committed the robbery. He would liken this case to Commonwealth v. Farrington, 219 Pa.Super. 104, 280 A.2d 623 (1971). There the victim of a burglary refused to say that the defendants were the burglars. Instead, the witness would say only that they resembled the burglars. Id. at 105-106, 280 A.2d at 624. The court held that the victim's testimony was too vague, tenuous and uncertain to establish beyond a reasonable doubt that the defendants were the persons who had committed the burglary. Id. at 106-107, 280 A.2d at 625. In the instant case, the evidence identifying appellant as the robber was more definite. Johnson testified that appellant was the robber, and Mrs. Javersack said she was "pretty sure" he was the robber. That a witness' prior description of appellant may have varied from appellant's actual appearance went only to the weight and credibility of the witness' testimony. It did not render the Commonwealth's evidence insufficient to sustain the conviction. See: Commonwealth v. Hickman, 453 Pa. 427, 430, 309 A.2d 564, 566 (1973); Commonwealth v. Boone, 287 Pa.Super. 1, 5, 429 A.2d 689, 691 (1981).

However, there is merit in appellant's contention that the trial court erred when it allowed the jury to consider his failure to appear on the date set for trial as evidence of guilt. The rule of law in this Commonwealth is that "[w]hen a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the basis in connection with other proof from which guilt may be inferred." Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964). Accord: Commonwealth v. Whack, 482 Pa. 137, 142-143, 393 A.2d 417, 419-420 (1978); Commonwealth v. Tinsley, 465 Pa. 329, 333, 350 A.2d 791, 792-793 (1976). This rule has not heretofore been expanded to permit an inference of guilt merely because a defendant has failed to appear for trial. A failure to appear on the day set for trial does not have the same connotation as pre-arrest flight or concealment and cannot be said to point unerringly to consciousness of guilt.

The trial court relied upon Commonwealth v. Smith, 250 Pa.Super. 460, 378 A.2d 1239 (1977), to support its holding that failure to appear for trial was admissible to prove consciousness of guilt. That decision, however, provides no such support. In Smith, the appellant fled the state after having posted bond. He was apprehended in New York City and returned for trial. Id. at 465, 378 A.2d at 1242. The court held that evidence of the defendant's flight following the posting of bond was probative of a consciousness of guilt. Id. at 466, 378 A.2d at 1242. There was no evidence in Smith that the defendant had failed to appear for trial, however, and the court did not hold that failure to appear at trial was admissible to show consciousness of guilt. The court's holding was limited to the facts before it, which involved flight and not a failure to appear for trial. Smith, therefore, does not provide support for the trial court's action.

The Commonwealth relies upon language appearing in footnote 3 in Commonwealth v. Knox, 290 Pa.Super. 104, 108, 434 A.2d 151, 153 (1981). In that case, however, the failure to appear for trial had been accompanied by flight, and the defendant had not been apprehended until four months later. The court did not hold that failure to appear for trial, without flight or concealment, was evidence of guilt. Instead, it was evidence of appellant's failure to...