Com. v. Brown

• Decision Date: 13 February 1986
• Citation: 505 A.2d 295,351 Pa.Super. 119
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Roy BROWN, Appellant. 921 Pitts. 1984
• Court: Pennsylvania Superior Court

Page 295

505 A.2d 295

351 Pa.Super. 119

COMMONWEALTH of Pennsylvania, Appellee, v. Roy BROWN, Appellant.

921 Pitts. 1984

Superior Court of Pennsylvania.

Submitted Sept. 23, 1985.

Filed Feb. 13, 1986.

Paulette J. Balogh, Asst. Public Defender, Pittsburgh, for appellant.

Kemal A. Mercli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before WICKERSHAM, WIEAND and BECK, JJ.

WIEAND, Judge:

On May 12, 1983, a neighbor observed a man carrying a television set from the home of Mary and Jack Johnson in Penn Hills, Allegheny County. He placed the television in a car in front of the Johnson home. The neighbor ran from his home, saw another man sitting behind the wheel of the car, and recorded the registration number as the vehicle was driven away. The neighbor subsequently identified Roy Brown, the appellant, as the driver of the car. After the Commonwealth had proved these facts, a jury found Brown guilty of theft and conspiracy.

The same jury, in a consolidated trial, found Brown guilty of criminal trespass and theft in connection with the removal of a television set and lace tablecloth from the home of Catherine Murtland in North Braddock, Allegheny County, on September 7, 1983. Brown had been observed by two neighbors who confronted him as he carried the television set and lace tablecloth from the Murtland home.

Post-trial motions were denied, and Brown was sentenced to two consecutive terms of imprisonment for an aggregate period of not less than four nor more than eight years. On direct appeal, he contends: (1) that the evidence was insufficient to show a conspiracy to steal the Johnson television; (2) that he was deprived of a speedy trial under Pa.R.Crim.P. 1100; (3) that the trial court erred in denying a defense request to continue the trial; (4) that the trial court erred in denying a defense request for separate trials; (5) that the trial court erred in denying a defense motion for a mistrial; (6) that the trial judge's frequent interjections and adverse comments deprived him of a fair trial; and (7) that sentencing counsel was ineffective for failing to require the court to place on the record the reasons for the sentences. After careful review, we conclude that new trials are necessary.

A conspiracy need not be established by direct evidence. Commonwealth v. Davenport, 307 Pa.Super. 102, 106, 452 A.2d 1058, 1060 (1982). A corrupt agreement to commit a criminal act may be shown by circumstantial evidence. Commonwealth v. Hurlbert, 329 Pa.Super. 119, 125, 477 A.2d 1382, 1385 (1984). See also: Commonwealth v. Mills, 332 Pa.Super. 75, 480 A.2d 1192 (1984). "The existence of a common agreement may be inferred from the evidence of the circumstances surrounding the allegedly conspiratorial activities, and from the relationship between and the conduct of the parties." Commonwealth v. Gordon, 329 Pa.Super. 42, 52, 477 A.2d 1342, 1347 (1984) (citations omitted). See also: Commonwealth v. Hart, --- Pa.Super. ---, 501 A.2d 675 (1985). "Where the conduct of the parties indicates that they were acting together with a common and corrupt purpose ... the jury may properly infer that a conspiracy did exist." Commonwealth v. Esposito, 236 Pa.Super. 127, 130, 344 A.2d 655, 657 (1975), quoting Commonwealth v. Armbruster, 225 Pa.Super. 415, 420, 311 A.2d 672, 674 (1973).

The evidence in this case was sufficient to enable a jury to infer that appellant, on May 12, 1983, had agreed to promote, facilitate and encourage the theft of a television set from the Johnson home in Penn Hills. Appellant had waited in a car while his companion had entered the Johnson home and removed the television. After the companion had returned and had placed the television set in the car, appellant sped away. An observant neighbor obtained the license number of the vehicle, which enabled police to trace the vehicle to appellant.

"[T]he driver of a 'get away' car can be found guilty as [a co-conspirator] if it is reasonable to infer that he was aware of the actual perpetrator's intention. His agreement to effectuate the escape aids the perpetrator in the planning and commission of the actual crime." Commonwealth v. Wright, 235 Pa.Super. 601, 605-606, 344 A.2d 512, 515 (1975). See: Commonwealth v. Azim, 313 Pa.Super. 310, 459 A.2d 1244 (1983) (appellant guilty of criminal conspiracy where he sat at wheel with engine running, lights on, and doors open while two other persons assaulted and robbed victim, after which appellant drove robbers from scene). See also: Commonwealth v. Perry, 334 Pa.Super. 495, 483 A.2d 561 (1984); Commonwealth v. Esposito, supra. A jury could find that appellant's presence outside the Johnson home, where he had no cause to be, sitting behind the wheel of a car, which he then used to transport the stolen Johnson television set and the thief away from the scene of the crime, was not merely fortuitous.

The criminal complaint in the first incident was filed on May 25, 1983. A warrant for appellant's arrest was issued the same day. The Rule 1100 run date, therefore, was November 21, 1983. Appellant was arrested on June 5, 1983 and released on his own recognizance. He failed to appear for a preliminary hearing on June 10, 1983 and remained in a fugitive status until December 9, 1983. On the latter date, the police learned that appellant had been incarcerated in the Allegheny County Prison on other charges. He was thereafter arraigned on February 1, 1984, and his trial commenced on February 20, 1984, sixty-two days after the run date.

"[A] criminal defendant on bail who willfully absents himself from a proceeding of which he had notice is precluded from relying on the concept of due diligence afforded by the speedy trial guarantee." Commonwealth v. Williams, 299 Pa.Super. 226, 231, 445 A.2d 537, 539 (1982), citing Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978). Such a defendant "has violated the conditions of his bail, and the Commonwealth is entitled to count any period of delay as excludable time under Rule 1100(d); a showing of due diligence is not required." Commonwealth v. Byrd, 325 Pa.Super. 325, 329, 472 A.2d 1141, 1143-1144 (1984). See also: Commonwealth v. Cohen, supra; Commonwealth v. Colon, 317 Pa.Super. 412, 421, 464 A.2d 388, 392-393 (1983); Commonwealth v. Williams, supra. A defendant who has failed to make a scheduled court appearance has violated the terms of his or her bail and will be considered unavailable for Rule 1100 purposes from the time of the proceeding at which he or she failed to appear until he or she voluntarily surrenders or is subsequently apprehended. Commonwealth v. Cohen, supra; Commonwealth v. Gorham, 341 Pa.Super. 499, 503, 491 A.2d 1368, 1370 (1985); Commonwealth v. Williams, supra. "We have held that this principle applies even where the defendant is incarcerated, and therefore cannot appear, if he has not complied with the notice requirement of [Pennsylvania] Rule [of Criminal Procedure] 4013(c)." Commonwealth v. Gorham, supra, 341 Pa.Super. at 503, 491 A.2d at 1370.

Appellant, despite knowledge of the time and place of his preliminary hearing, failed to appear. He was thereafter not found by the police until December 9, 1983. The time between June 10, 1983 and December 9, 1983, therefore, is excludable. Because he failed to comply with the requirements of Pa.R.Crim.P. 4013(c) that he give notice of any change of address, it is not necessary to inquire, as appellant would have us do, whether the police exercised due diligence to find him while he was a fugitive. He was unavailable during this period; and, therefore, the period is excludable. Appellant was tried within the time constraints of Rule 1100.

Appellant's next argument, ironically, is that he was tried too soon. He contends that his trial counsel needed additional time to prepare for trial and that the court erred in denying a defense request for a continuance. We disagree.

The granting or refusal of a request for continuance is vested in the discretion of the trial court. Commonwealth v. Lore, 338 Pa.Super. 42, 59, 487 A.2d 841, 850 (1984). The denial of a continuance will be reversed on appeal only upon a showing of palpable and manifest abuse of discretion. Commonwealth v. Maute, 336 Pa.Super. 394, 405-406, 485 A.2d 1138, 1144 (1984); Commonwealth v. Faraci, 319 Pa.Super. 416, 421, 466 A.2d 228, 231 (1983). "A simple allegation that more preparation is necessary for investigation and trial preparation will not suffice in demonstrating an abuse of discretion." Id. at 421-422, 466 A.2d at 231. Mere shortness of time in which to prepare does not mandate the granting of a continuance. Commonwealth v. Lore, supra (three weeks from appointment to suppression hearing in which to prepare); Commonwealth v. Faraci, supra (thirteen days to file pre-trial motions and one month to prepare for trial); Commonwealth v. Hubble, 314 Pa.Super. 99, 460 A.2d 784 (1983)(three and one-half months to prepare); Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981) (fifty-five days in which to prepare for trial). An appellant must be able to show specifically in what manner he was unable to prepare his defense or how he would have prepared differently had he been given more time. Id. at 152, 428 A.2d at 617. We will not reverse a denial of a motion for continuance in the absence of prejudice. See: Commonwealth v. Hubble, supra, 314 Pa.Super. at 105, 460 A.2d at 787; Commonwealth v. Eackles, supra, 286 Pa.Super. at 152, 428 A.2d at 617.

Appellant argues that had trial counsel been given additional time to familiarize himself with the facts, he would have discovered that the Commonwealth had not exercised due diligence in attempting to bring appellant to trial within 180 days on the charges arising from the incident of May 12, 1983. Appellant's argument seems to be that had counsel learned of these facts he could have filed a motion to dismiss under Rule 1100. However, trial counsel did file a...