Com. v. Badman

• Decision Date: 03 October 1990
• Citation: 580 A.2d 1367,398 Pa.Super. 315
• Parties: COMMONWEALTH of Pennsylvania v. Thomas B. BADMAN, Appellant.
• Court: Pennsylvania Superior Court

Page 1367

580 A.2d 1367

398 Pa.Super. 315

COMMONWEALTH of Pennsylvania v. Thomas B. BADMAN, Appellant.

Superior Court of Pennsylvania.

Submitted July 30, 1990.

Filed Oct. 3, 1990.

Elizabeth A. Beroes, Asst. Public Defender, Sunbury, for appellant.

Robert B. Sacavage, Dist. Atty., Carmel, for Com., appellee.

Before ROWLEY, McEWEN and OLSZEWSKI, JJ.

OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence. The facts of this case, as summarized by the trial court, are as follows:

The [appellant] was found guilty of murder in the third degree by a jury. The victim was Patricia Gebhart, a thirty-three year old woman who was somewhat mentally retarded and somewhat physically handicapped. Her only income was from social security and disability benefits.

The trial record shows that the [appellant] and the victim had been dating for a period of time and there was a history of the defendant verbally and physically abusing the victim and obtaining money from her from time to time.

The victim was last seen alive in Sunbury on June 18, 1984, and on July 4, 1984 she was reported missing by her grandmother. The victim's skeleton was discovered half buried in the bed of the Susquehanna River in Sunbury on April 18, 1985. John Oyster testified that in July of 1984 the [appellant] told him that he had beat up the victim and that "they" had buried the body.

Trial court opinion of August 29, 1989, at 1-2. The evidence presented at trial showed that the victim had been consistently abused verbally, physically, sexually, and financially by appellant and other persons. Evidence at trial indicated that the victim intended to marry appellant, but that appellant had no intentions of marrying the victim.

Appellant testified in his own defense that he did not kill the victim or bury her. He did, however, admit that he took money from the victim on at least one occasion, and admitted taking pills from her. Following a jury trial, appellant was convicted of third-degree murder.

Appellant's post-verdict motions were denied; his ineffectiveness claims were heard separately and denied. Appellant was then sentenced to a term of imprisonment of between ten and twenty years. Appellant's motion to modify sentence was denied, new counsel was then appointed, and a subsequently filed petition to appeal nunc pro tunc was granted. Appellant now presents ten issues for our consideration:

1. Whether the Court erred in admitting the testimony of the Commonwealth Expert witness, a forensic pathologist, whose opinions were based on facts not in evidence, thereby prejudicing Defendant.

2. Whether the Commonwealth impermissively (sic) impeached a defense witness on collateral matters and whether the Court therefore erred in allowing the jury to consider it.

3. Whether the Trial Court and Trial Attorneys erred by permitting Hearsay statements made by the decedent/victim into evidence which was improperly considered by the jury.

4. Whether the Trial Court and Trial [Attorn]eys erred by permitting the Commonwealth to assassinate the cha[r]acter of the defendant with specific instances of conduct occurring at remote times before the defendant took the stand and before the defense placed the character of defendant in issue.

5. Whether the Trial Court and Trial Attorneys erred by permitting the Commonwealth to present irrelevant and inflammatory evidence regarding Beatrice Long.

6. Whether the Trial Court erred in denying defendants Motion to Dismiss because the Information in this case was unconstitutionally vague and lacked the requisite specifi[ci]ty.

7. Whether the Court erred in denying Defendant's Motion for New Trial after repeated prosecutorial misconducts in the District Attorney's closing argument.

8. Whether the evidence in this case was insufficient in weight resulting in a verdict contrary to sustain a finding of guilt.

9. Whether trial counsel was ineffective and thereby prejudicing Defendant's rights to a fair trial and resulting in unreliable verdict.

10. Whether the trial Court abused its discretion and ordered Defendant to serve a manifestly excessive sentence.

Appellant's brief, at 4. ¹ As we find no merit to any of appellant's issues, we affirm the judgment of sentence.

Appellant's first issue concerns whether the court erred in admitting the testimony of the Dr. Herbert Fillinger, a forensic pathologist, whose opinions were based on facts not in evidence, thereby prejudicing defendant. We have examined appellant's post-verdict motions and the trial court opinions. Appellant did not raise this issue in post-verdict motions and, to the best of our knowledge, the trial court did not have the opportunity to consider this issue. Appellant has therefore waived this argument on appeal. See Commonwealth v. Gordon, 364 Pa.Super. 521, 528 A.2d 631 (1987) (per curiam), allocatur denied, 517 Pa. 621, 538 A.2d 875 (1988).

Appellant's second argument on appeal concerns whether the Commonwealth impermissibly impeached defense witness Sharon Walter on collateral matters. Sharon Walter testified at appellant's trial as a defense witness. The testimony she gave completely contradicted the story she had told, under oath, at three separate preliminary hearings. A witness may always be questioned concerning bias. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968). A witness's credibility may be impeached with evidence of her prior statements which are inconsistent with her testimony at trial. Commonwealth v. Baez, 494 Pa. 388, 431 A.2d 909 (1981); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978) (substantial inconsistency). As the impeachment was introduced concerning the issue of the witness's credibility, we find that the trial court did not abuse its discretion in allowing the impeachment, and find appellant's second issue to be without merit.

Appellant's third issue concerns whether the trial court and trial attorneys ² erred by allowing the introduction into evidence of statements which the victim had made. As appellant made no contemporaneous objection at trial, this issue is waived. Commonwealth v. Myer, 340 Pa.Super 176, 489 A.2d 900 (1985).

Appellant's fourth issue concerns whether the trial court and trial attorneys ³ erred by permitting the Commonwealth to assassinate the character of the defendant with specific instances of conduct occurring at remote times before the defendant took the stand and before the defense placed the character of defendant in issue. As appellant did not make a contemporaneous objection to the introduction of this evidence or seek an appropriate limiting instruction, this issue is waived. See Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980). We further note that, even were we to reach this issue, we would find that the trial court did not err, as the evidence was admissible to show appellant's prior course of conduct toward the victim. Cruz, supra.

Appellant's fifth issue concerns whether the trial court and trial attorneys ⁴ erred by permitting the Commonwealth to present irrelevant and inflammatory evidence regarding Beatrice Long. Appellant argues that the introduction of evidence pertaining to Beatrice Long, who was charged as a co-conspirator in the murder of Patty Gebhardt, was an attempt to prove appellant's guilt by association. Appellant fails to consider that a defendant takes full responsibility for the acts of his co-conspirators. See Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973). The evidence concerning Beatrice Long was relevant, and properly admitted. We therefore find appellant's fifth issue to be without merit.

Appellant's sixth issue concerns whether the trial court erred in denying defendant's motion to dismiss because the information was unconstitutionally vague and lacked the requisite specificity. A criminal information must inform the accused of the crime with which he is being charged. Cf. Commonwealth v. Lee, 454 Pa. 526, 312 A.2d 391 (1978) (Eagen, J., concurring) (indictments). The information should be read in a common sense manner, rather than being construed in an overly technical sense. Cf. Commonwealth v. Pope, 455 Pa. 384, 390, 317 A.2d 887, 890 (1974) (indictments).

We most emphatically reject appellant's assertion that the statement that he did "kill or take part in the killing" of Patricia Gebhart failed to inform him of the crime with which he was being charged. The information clearly showed that the beating and eventual murder of the victim was the underlying transaction appellant was charged with. In a case such as this, where the Commonwealth understandably lacked the knowledge and ability to give a specific moment-by-moment description of how the crime occurred, the information contained in the information was more than sufficient to inform appellant of the crime with which he was charged. Further, we find that as the information filed against appellant specified the underlying transaction, the cases he cites, Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979) (per curiam), and Commonwealth v. Russell, 261 Pa.Super. 161, 395 A.2d 1365 (1978), support affirming, rather than reversing, the trial court's determination.

Appellant's seventh issue concerns whether the trial court erred in denying his motion for new trial based on allegations of prosecutorial misconduct. Appellant's complaint centers around the prosecutor's repeated references during closing argument to what he termed a "defense of distraction." In reviewing an allegation of prosecutorial misconduct, we are guided by the words of our Supreme Court, which has stated that comments made by a prosecutor

do not constitute reversible error unless the 'unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.'

Commonwealth v. Anderson, 501 Pa. 275, 282, 461 A.2d 208, 211 (1983); ...