Com. v. Bolus

• Citation: 545 Pa. 103,680 A.2d 839
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert C. BOLUS, Appellant.
• Decision Date: 23 July 1996
• Court: Pennsylvania Supreme Court

Page 839

680 A.2d 839

545 Pa. 103

COMMONWEALTH of Pennsylvania, Appellee, v. Robert C. BOLUS, Appellant.

Supreme Court of Pennsylvania.

Argued Dec. 6, 1995.

Decided July 23, 1996.

[545 Pa. 105] Gregory H. Chelak, Milford, for Appellant.

Michael Barrasse, William P. O'Malley, Scranton, for Appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY and CASTILLE, JJ.

OPINION

NIX, Chief Justice.

Appellant, Robert C. Bolus, appeals from the Order of the Superior Court which affirmed the judgment of sentence of the Court of Common Pleas of Lackawanna County. A jury convicted Appellant of two counts of receiving stolen property, ¹ tampering with or fabricating physical evidence, ² and criminal solicitation, ³ all in connection with his possession of a stolen tractor-trailer rig and an earth moving machine ("front-end loader") that was transported on the trailer. This Court granted Appellant's Petition for Allowance of Appeal limited to the question of whether Appellant's trial counsel was ineffective for failing to object to questions concerning Appellant's pre-arrest failure to cooperate in the police investigation. For the reasons that follow, we hold that trial counsel was not ineffective.

Appellant owned a towing service near Interstate 80 close to Scranton. In October of 1991, an individual named Leonard Brush approached Appellant regarding a tractor-trailer that he had seen stored on Appellant's towing service lot, unused for over one year. Appellant permitted Brush, who was interested in purchasing the tractor-trailer, to inspect it. Unbeknownst to Appellant, during the inspection, Brush obtained the tractor-trailer's vehicle identification numbers ("V.I.N.s"). Appellant told Brush that the tractor-trailer had been abandoned and that, although he did not currently have title to it, he was in the process of obtaining title via a mechanics lien. Brush, who had previously been convicted of receiving stolen property, decided to proceed in a cautious fashion. Accordingly, Brush hired a private investigator to trace the V.I.N.s.

The investigation revealed that the tractor-trailer had been reported stolen property from a storage yard in Flushing, New York, in June, 1989. The police then contacted the inquiring party and learned that the tractor-trailer was now located in Appellant's towing service yard. The police then proceeded to Appellant's storage yard and when Appellant was not present, they verified the tractor-trailer's V.I.N.s.

After confirming that the tractor-trailer was in fact stolen, the police questioned Appellant regarding his possession of the stolen property. Appellant initially told the police that the tractor-trailer had broken down on Interstate 80 and that he towed it in pursuant to a request by the police. According to Appellant, he then replaced a defective fuel pump and attempted unsuccessfully to contact the vehicle's owner. Because the owner never returned his phone calls or paid the towing, repair, and subsequent storage bills, Appellant had retained possession of the tractor-trailer and was waiting to obtain title via a mechanics's lien.

The police did not believe Appellant's account of the events. The police initially became suspicious when they were unable to find any record of a request for a tow on the interstate for the vehicle in question, which would ordinarily be contained in a police log. In addition, they were dissatisfied with Appellant's explanation that because he recently moved his office, he was unable to locate either the repair bill or the telephone number of the owner. Finally, the police found Appellant's explanation of how he was trying to obtain title unbelievable in light of the difference in value that existed between the small amount of his bills and the large value of the vehicle.

Based upon Appellant's deficient explanation, the police seized the tractor-trailer. As they were removing it, the police asked Appellant if he knew anything about the front-end loader which had been stolen along with the tractor-trailer. Appellant denied having any knowledge regarding the whereabouts of the front-end loader, and then, on advice of counsel, refused to cooperate further with police.

The next morning, October 30, 1990, the police stopped a tractor-trailer, owned by Appellant, hauling a front-end loader toward the interstate highway. The police later determined that the front-end loader was the one stolen along with the tractor-trailer they had seized from Appellant the day before. On January 1, 1991, Appellant was arrested and subsequently brought to trial. At trial, Appellant testified to a different version of events from that which he had previously told the police. Appellant testified that he had purchased the front-end loader. In order to substantiate this defense, Appellant produced cancelled checks purportedly paid to an individual named Willie Thomson. Moreover, Appellant denied any knowledge that the machine was stolen.

During the trial, Petitioner was cross-examined concerning the checks made out to Willie Thomson, the person from whom Appellant testified that he had purchased the equipment:

Q. [By the Assistant District Attorney] But Willie Thomson you don't know.

A. [By Appellant] No I never said I don't know--Willie Thomson is a white man.

Q. Oh, Willie Thomson is a white man.

A. Yes, sir.

Q. Okay. Do you think maybe that if you told the police officer last November, when this happened, "call Willie Thomson, he sold it to me," do you think maybe the police officer would be able to pick up the phone and call Willie Thomson to see if the truth was there?

A. I don't know what the police officer would have done.

Q. But you didn't tell him, did you, so he couldn't call Willie Thomson because he didn't know anything about Willie Thomson.

A. The state police had all my records. Sgt. Scales was notified to contact my attorney, and he could have really discussed it with him. He knew I was represented by counsel.

Q. Mr. Bolus, the state police didn't get your records until late January.

A. That's correct.

Q. I'm, talking about November, before anybody arrested you, when you were trying to get your tractor and trailer back, which you so deeply and dearly needed. Sir, you never told that man that you bought it from Willie Thomson, did you?

A. No, sir, I did not.

Q. And you didn't tell that man, who was trying to find out about this, anything about Captain's Inc., either did you?

A. I did not tell that man anything because I did not trust that man.

....

Q. And he asked you up there, "do you have a bill of sale?" He asked you.

A. And I told him that I was represented by counsel, and that if I had any information that he needed, to contact my attorney.

Q. Did you tell your attorney, "These guys want to know if I own this machine so I can get my tractor and trailer?"

A. My attorney was fully aware of it.

Q. And he had this proof here, too, didn't he?

A. That's right.

Q. Three checks, one dated June 12th, one dated June 15th and one dated June 22nd [which were not then turned over to police.]

A. That's correct, and I was advised by my attorney that there was no doubt in anyone's mind that Sgt. Scales was going to arrest me, and to keep that information, that it could be presented in a court of law, and to a jury that's seated here today, in my defense. The state police were out to get me, we had numerous problems with them, and there was no way I trusted that man sitting there.

(R.R. at 153a-156a).

A jury convicted Appellant of two counts of receiving stolen property, tampering with physical evidence, and criminal solicitation, all in connection with his possession of a stolen tractor-trailer rig and the front-end loader that was transported on the rig. After the trial court denied post-verdict motions, Appellant appealed to the Superior Court. In a memorandum opinion, the Superior Court affirmed the judgment of sentence. It held that Appellant's failure to cooperate, like flight, was evidence tending to establish guilt. Commonwealth v. Bolus, No. 3546 Philadelphia 1992, slip op. at 13, 432 Pa.Super. 682, 635 A.2d 200 (Aug. 19, 1993). The Superior Court concluded that the federal Constitution did not prohibit the prosecutor from engaging in this line of questioning because during the time period in which the prosecutor had referred to Appellant's silence, Appellant had not yet become the focus of a criminal investigation or placed under arrest. Id. This appeal followed.

The standard for establishing ineffective assistance of counsel is a three-fold inquiry. In order to prevail on such a claim, it must be shown: (1) that the claim has arguable merit, (2) that there was no reasonable basis for counsel's action or inaction, and (3) that the defendant was prejudiced in such a way that the outcome of the trial could have reasonably been different. Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975 (1987).

Appellant claims that his trial counsel was ineffective because counsel failed to object to the prosecutor's line of questioning regarding Appellant's pre-arrest refusal to respond to police questions or produce exculpatory documents which he introduced at trial. Appellant proffers two distinct arguments as to why this omission constituted ineffective assistance of counsel. First, Appellant contends that the prosecutor's line of questioning impermissibly made mention of his silence, thus violating the Pennsylvania Constitution as interpreted by this Court in Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982). Second, Appellant maintains that even if this line of questioning did not rise to the level of a constitutional violation, it nonetheless was not relevant and/or more prejudicial than probative.

Turning to Appellant's first claim of error, Appellant asserts that the prosecutor's line of questioning and his subsequent argument based on that testimony were improper under this Court's pronouncement in Commonwealth v. Turner, supra....