Com. v. Conard

• Decision Date: 17 June 1965
• Citation: 211 A.2d 14,206 Pa.Super. 33
• Parties: COMMONWEALTH of Pennsylvania v. Verle G. CONARD, Appellant.
• Court: Pennsylvania Superior Court

Page 14

211 A.2d 14

206 Pa.Super. 33

COMMONWEALTH of Pennsylvania v. Verle G. CONARD, Appellant.

Superior Court of Pennsylvania.

June 17, 1965.

Application for Allocatur Denied Sept. 15, 1965.

Raymond C. Schlegel, Reading, for appellant.

W. Richard Eshelman, Dist. Atty., Ralph J. Althouse, Asst. Dist. Atty., Reading, for appellee.

Before ERVIN, P. J., and WRIGHT, WATKINS, MONTGOMERY, JACOBS and HOFFMAN, Jj.

JACOBS, Judge.

Appellant was indicted on November 25, 1958, on charges of armed robbery and conspiracy to commit robbery. His first trial in June, 1960, ended in a mistrial because of the sudden illness of the trial judge. He was tried again in September, 1960, and that trial ended in a mistrial because of the illness of one of the alleged victims. He was again tried in March, 1963, and on March 14, 1963, a jury found him guilty on both counts. Motions in arrest of judgment and for a new trial were refused by the court below and sentence was imposed. Appellant appeals from the judgment of sentence.

Appellant claims that his constitutional rights were violated by his arrest without a warrant and the failure to immediately have a preliminary hearing. Appellant was arrested on the evening of September 25, 1958. A warrant was issued the next day and appellant was committed to the Berks County Prison in default of bail. A preliminary hearing was set for October 7, 1958, and was postponed until October 14, 1958, at the appellant's request.

A police officer may arrest without a warrant where he has knowledge of facts and circumstances which are sufficient to warrant a man of reasonable caution to believe that a certain individual has committed a felony. Commonwealth ex rel. Whiting v. Rundle, 414 Pa. 17, 198 A.2d 568. It is not necessary that the one arrested be accorded an immediate hearing before a magistrate. Commonwealth v. Thomas, 189 Pa.Super. 25 at 31, 149 A.2d 165. Nor is a mere delay in granting a defendant a preliminary hearing necessarily a denial of his constitutional rights. Commonwealth v. Graham, 408 Pa. 155, 182 A.2d 727. Appellant has not shown that he was prejudiced in any way by the failure to secure a warrant until the day after he was arrested or the failure to set a hearing before October 7, 1958. He does not claim that the officer lacked reasonable grounds for suspecting him, nor did he make a confession. We are satisfied that his constitutional rights were not violated and that a hearing was fixed within a reasonable time.

In this case the Commonwealth cross-examined the appellant as to a prior conviction for prison breach and a prior conviction of burglary, larceny and receiving stolen goods. The appellant admitted the prior convictions and the Commonwealth did not offer the records of said convictions. Such cross-examination was permitted for the purpose of impeaching appellant's credibility and for no other purpose and so the trial judge clearly told the jury.

Unless a defendant attempts to establish his own good reputation at the trial he may not be asked about convictions of other offenses. Act of March 15, 1911, P.L. 20, 19 P.S. § 711. Commonwealth v. Wiswesser, 124 Pa.Super. 251, 188 A. 604. The Act of 1911 was passed to prevent fishing expeditions by way of cross-examination which might prove very prejudicial to the defendant. Commonwealth v. Williams, 307 Pa. 134, 160 A. 602. No attempt was made by the defendant to establish his own good reputation and his credibility could have been impeached simply by producing and offering the record of his conviction of the felonies. However, defendant made no motion to withdraw a juror and does not now object to the manner of introducing his prior convictions and we will treat the same as if properly introduced. The appellant's sole objection to the admission into evidence of these two prior convictions is that they were convictions which occurred after the offense for which he was being tried. The prison breach conviction arose from an escape made by appellant while he was in prison awaiting trial on the instant charges. The burglary convictions was in York County in 1959.

After this case was argued the Supreme Court of Pennsylvania handed down Commonwealth v. McIntyre, 417 Pa. 415, 208 A.2d 257. In that case McIntyre was being tried for a murder committed on March 14, 1960. At the time he gave a statement in regard to the murder he also admitted committing four burglaries after the date of the murder. He was sentenced on the burglary convictions and after completing his sentence thereon was returned for trial on the murder charge. All of the proceedings were handled in the same county. In the murder trial, after the defendant had testified, the Commonwealth introduced the record of the defendant's four guilty pleas to the burglaries which were committed subsequent to the date of the murder for the specific purpose of impeaching the defendant's credibility as a witness. The Supreme Court decided that McIntyre was entitled to a new trial. McIntyre argued that the Commonwealth should have tried him first on the murder offense and that by trying him first on the subsequent and unrelated burglary charges the Commonwealth created a criminal record which was unfairly utilized to impeach his credibility. The Supreme Court in its opinion appears to limit the decision to the particular circumstances of that case and states that it is not necessary to abandon the existing general rule in regard to the admission of prior convictions of felonies or misdemeanors in the nature of crimen falsi for the purpose of impeaching defendant's testimony. The Supreme Court laid particular emphasis on the fact that the scheduling of a criminal's trials is a matter within the discretion of the Commonwealth and stated as follows:

'We are unwilling to allow opportunity for arranging the trial of cases so that a criminal record might be created where that record would not otherwise exist were the earlier offenses tried promptly.'

The case before this court may be distinguished factually from the McIntyre case. This is not a capital case and there is no indication of court calendar manipulation. The conviction in 1959, in York County, was beyond the control of the Berks County Courts. The prison breach conviction in Berks County was directly related to the robbery charge on which the appellant was tried and was also admissible on the ground that it was evidence of an escape tending to show guilt on the part of the appellant. There is no evidence as to exactly when the York burglary offenses occurred and it is entirely possible that they occurred prior to September 10, 1958. Inasmuch as the Supreme Court, in McIntyre, did not abrogate the general rule in Pennsylvania permitting defendant's testimony to be impeached by showing prior convictions of felonies, we are of the opinion that the prior convictions admitted into evidence in this case fall under the general rule rather than the exception enunciated in the McIntyre case. The credibility of the witness is being attacked as of the time of the trial not as of the time of the commission of the offense for which he is being tried.

Appellant complains that his application for a continuance made at the close of the Commonwealth's case in order to enable him to secure and present alibi testimony was refused. An application for a continuance is addressed to the sound discretion of the trial court, whose action will not be disturbed in the absence of a manifest abuse of discretion. Commonwealth v. Morrison, 180 Pa.Super. 121, 118 A.2d 258; Commonwealth v. Niemi, 365 Pa. 105, 73 A.2d 713. Here, appellant had been under indictment for over four years, since December, 1958, and two trials had already been continued due to the illness of the judge and a witness and there was no indication that the existence of the two alleged alibi witnesses was mentioned in that four year period. Appellant had indicated to his counsel that the proposed witnesses 'either would not testify as he had stated or would not be available to testify', and they were not subpoenaed. Under such circumstances the...