Com. v. Finkelstein

Decision Date17 December 1959
PartiesCOMMONWEALTH of Pennsylvania v. Phillip FINKELSTEIN, Appellant. COMMONWEALTH of Pennsylvania v. Isaac MORSHUN, Appellant.
CourtPennsylvania Superior Court

Albert Martin, Herbert Blumenfeld, Pittsburgh, for appellant.

Edward C. Boyle, Dist. Atty., William Claney Smith, Asst. Dist. Atty., Pittsburgh, for appellee.

Before HIRT, Acting P. J., and GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

ERVIN, Judge.

The defendants, Isaac Morshun and Phillip Finkelstein, were tried and convicted of the charge of accessory before and after the fact to armed robbery. Finkelstein was also convicted on the charge of receiving stolen goods.

Following the dismissal of motions for a new trial and in arrest of judgment sentence was imposed. Both were sentenced to imprisonment on the first charge but sentence was suspended as to Finkelstein on the receiving of stolen goods charge. Both defendants appealed from the judgment of sentence.

Albert LaMolinare, Charles Balazs and Donald Halt hijacked and robbed a truckload of cigarettes belonging to W. J. Beitler Company on May 28, 1958 at about 9:15 a. m. at the intersection of Carson and Stanhope Streets in the City of Pittsburgh. The truck was then driven to a garage at 1202 Watson Avenue, where it was unloaded. Subsequently the cigarettes were moved to a garage next to 6307 St. Marie Street in the East Liberty section of the City of Pittsburgh. On June 3, 1958 Mrs. Elizabeth Lalle, a policewoman, observed men loading the cigarettes into an Avis Rental truck at the garage on St. Marie Street. She reported this and gave the license number of the truck. As a result of this information the police officers arrested a man by the name of Lapnicky, Donald Halt and Charles Balazs and subsequently discovered 186 cartons of cigarettes at the residence of John Lapnicky near Irwin, Pennsylvania. LaMolinare was subsequently arrested in Texas and brought back to Pittsburgh. At the trial LaMolinare, Halt and Balazs, who actually committed the armed robbery and who were awaiting sentence on pleas of guilty, appeared and testified as witnesses for the Commonwealth.

The principal question is whether there was sufficient evidence to sustain a conviction of accessory before or after the fact of armed robbery as to both defendants. It is contended by the Commonwealth and substantiated by the testimony of LaMolinare, that Finkelstein and Morshun had made arrangements with him prior to the robbery concerning the disposition of the cigarettes. On the other hand, it is the contention of the defendants that they did not act as accessories either before or after the fact of armed robbery and that they had no knowledge of the commission of the robbery except that which they subsequently gained from the newspapers.

We have carefully examined the testimony and are of the opinion that there was sufficient evidence to justify the conviction of the defendants as accessories before and after the fact of armed robbery. LaMolinare testified that on the day before the robbery he met Morshun in front of Bubble's Restaurant and that he told him that he had no plan to dispose of the cigarettes and that Morshun took him to Finkelstein across the street from the restaurant, where Finkelstein operated a gas station, and then Finkelstein took them around to the garage and said 'Unload them there.' It is fairly clear from an examination of this testimony that both Morshun and Finkelstein understood that the cigarettes were to be stolen and that their part of the scheme was to provide the outlet for the disposal of them. Finkelstein testified that he had formerly been in the business of selling cigarettes which had been illegally brought in from out of the state. Morshun admitted in his testimony that he had been in the numbers business for some time. LaMolinare also testified that arrangements were made by Finkelstein to meet him the next morning at the garage. He further testified that between 9:30 and 10:00, after the robbery had been committed and the truck backed into the garage, Finkelstein helped him unload the truck in the garage, as previously arranged. Both defendants, in our opinion, aided in the commission of the crime of armed robbery but were not present at the actual scene of the robbery. Their arrangement to dispose of the cigarettes was an essential element in the plan. LaMolinare also testified that both of the defendants knew the cigarettes were to be stolen and that he was to receive certain moneys after the robbery as part payment of the cigarettes turned over to the defendants. He described how both men talked together and then paid him $200 on account. He also testified that Morshun subsequently gave him another hundred dollars for the purpose of renting a truck and transporting the cigarettes to the Lapnicky farm near Irwin. The defendants provided the location for the storage of the hijacked goods, made arrangements to dispose of the same at a later date and assisted financially in hiring a truck to transport the stolen cigarettes to another place of hiding. In our opinion these facts definitely establish that the defendants assisted the felons both before and after the commission of the crime of robbery. An accessory before the fact is one who plans, cooperates, assists, aids, counsels or abets in the perpetration of a felony, but who is absent when the crime is committed. Commonwealth v. Darnell, 179 Pa.Super. 461, 116 A.2d 310. See also Commonwealth v. Mourar, (No. 1), 167 Pa.Super. 276, 74 A.2d 732. An accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment. Commonwealth v. Darnell, supra.

It is also contended that the court erred in refusing to admit evidence of prior convictions for felonies as to the Commonwealth's witness, Albert LaMolinare. Defense counsel cross-examined LaMolinare as follows:

'Q. At that time you also pleaded guilty to other charges of burglary, did you not? A. Yes.

'Q. How many other charges did you plead guilty to? A. Three.

'Q. Three burglary charges? A. Yes.

'Q. And I believe all pleas were made in front of the same Court, is that right? A. Yes.

'Q. And you haven't been sentenced on any charges? A. Not as yet.

'Q. And I believe at least one of the burglaries involved breaking into a private dwelling house, is that correct? A. Yes.

'Mr. Fagan: I don't know the materiality of that, if the Court please.

'Mr. Phillips: I believe it goes to his credibility.

'The Court: This is cross-examination. Confine it to this case here. Confine it to the limits of the direct examination. You know the Rules of Court.

'Mr. Phillips: Am I permitted to ask him of any other charges he pleaded guilty to?

'The Court: You are a lawyer and you know the Rules. I am sustaining his objection. (Exception noted.)'

Although it is proper to cross-examine concerning specific convictions of crimes affecting the credibility of the witness, the crimes must be those for which a sentence has been imposed. In Commonwealth v. Palarino, 168 Pa.Super. 152, 156, 77 A.2d 665, 667, it was said: 'With respect to impeachment of witnesses by records of previous convictions, it has been decided that 'conviction' must be given its strict technical meaning. Neither a verdict nor a plea will, without more, suffice. Commonwealth v. Auerbach (No. 1), 71 Pa.Super. 54 (plea); American Bank v. Felder, 59 Pa.Super. 166 (verdict). There must be a judgment of conviction.' See also Commonwealth v. Socci, 177 Pa.Super. 426, 428, 429, 110 A.2d 862. The action of the court below was entirely proper in refusing to permit defense counsel to ask the witness whether he had plead guilty to any crimes. It would have been proper for him to ask in cross-examination whether he had been sentenced for any felonies or misdemeanors crimen falsi. This he did not do. It would also have been proper for defense counsel to make a specific offer of proof to show conviction and sentence for other crimes affecting the witness' credibility. This was not done. It is not error to limit cross-examination in relation to crimes affecting credibility where there has been no formal offer of proof. Commonwealth v. Kent, 160 Pa.Super. 1, 2, 49 A.2d 868. The court's action was not prejudicial to the appellant as the jury was already apprised of the fact that the witness had plead guilty to at least three burglary charges, some of which were not connected with the present case.

The appellants have also raised three other questions which were not raised in the court below. For this reason alone we would be justified in refusing to review them. Commonwealth ex rel. DeSimone v. Maroney, 179 Pa.Super. 300, 303, 116 A.2d 747. We will, however, refer to them briefly.

Appellant argues that it was error for the court below to fail to charge that the defendant Finkelstein could not be convicted on the indictment of accessory after the fact to armed robbery and the indictment of receiving stolen goods. No requests for instructions were made concerning this matter. It should be noted, however, that Finkelstein was also charged with being an accessory before the fact of armed robbery. The testimony of LaMolinare implicated Finkelstein in the preparation for the commission of the...

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2 cases
  • Com. v. Brown
    • United States
    • Pennsylvania Superior Court
    • December 10, 1969
    ...counsels or abets in the perpetration of a felony, but who is absent when the crime is committed." Commonwealth v. Finkelstein, 191 Pa.Super. 328, 332-333, 156 A.2d 888, 892 (1959). Cf. Commonwealth v. Darnell, 179 Pa.Super. 461, 116 A.2d 310 (1955). Although the accessory's acts are prelim......
  • Com. v. Bennett
    • United States
    • Pennsylvania Superior Court
    • November 11, 1971
    ...the testimony of another accomplice. Commonwealth v. Pressel, 194 Pa.Super. 367, 168 A.2d 779 (1961) and Commonwealth v. Finkelstein, 191 Pa.Super. 328, 156 A.2d 888 (1959). The court, however, refused this point for charge. The court, instead, instructed the jury to determine whether Mr. J......

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