Com. v. Foreman

• Decision Date: 25 April 2002
• Citation: 797 A.2d 1005
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joseph M. FOREMAN, Appellant. Commonwealth of Pennsylvania, Appellant v. Joseph M. Foreman, Appellee.
• Court: Pennsylvania Superior Court

797 A.2d 1005

COMMONWEALTH of Pennsylvania, Appellee v. Joseph M. FOREMAN, Appellant.

Commonwealth of Pennsylvania, Appellant v. Joseph M. Foreman, Appellee.

Superior Court of Pennsylvania.

Submitted January 14, 2002.

Filed April 25, 2002.

James McHugh, Media, for Foreman.

A. Sheldon Kovach and Patrick L. Meehan, Asst. Dist. Attys., Media, for the Com.

Before: MCEWEN, P.J.E., BOWES and BROSKY, JJ.

BOWES, J.:

¶ 1 Joseph Foreman appeals from the September 12, 2000 judgment of sentence of five to twelve months imprisonment followed by two years probation that was imposed after he was convicted of multiple counts of receiving stolen property, tampering with or fabricating physical evidence, removal or falsification of vehicle identification numbers, and dealing in vehicles with removed or falsified numbers. Following imposition of the judgment of sentence, Appellant filed post-sentence motions. Evidentiary hearings were held on October 27, 2000, and February 2, 2000, to determine whether Appellant's jury-trial waiver was voluntary and whether defense counsel was ineffective at trial. On February 20, 2001, the trial court found that it erred in admitting certain Commonwealth evidence and granted judgment of acquittal on some of the charges. However, it left the sentence intact. This appeal and cross-appeal followed.¹ We affirm in part and reverse in part.

¶ 2 On October 20, 1998, approximately eight members of the Pennsylvania State Police Auto Theft Task Force executed a search warrant at Sport Cycle and Salvage, a motorcycle repair business owned and operated by Appellant in Prospect Park, Pennsylvania. As a result of the search, two stolen motorcycles, thirteen engines from stolen motorcycles, one frame of a stolen motorcycle, and six sets of metal punch stamps were seized. Police also discovered a stolen gas tank, but it mistakenly was left behind after it was boxed and marked for seizure. When the police returned the next day to retrieve the box, it had been torn open, and the tank was missing.

¶ 3 Nine Commonwealth witnesses testified that their motorcycles were stolen on various dates between 1996 and 1998. After studying police reports, certificates of title, and vehicle registration documents provided by the Commonwealth, the witnesses stated for the record the vehicle identification numbers of their stolen motorcycles. In this manner, the Commonwealth established the vehicle identification number of each witness's motorcycle and that the motorcycles which bore those numbers, in fact, had been stolen. The Commonwealth also showed photographs of motorcycle engines to a few witnesses, but they were not sure if the engines in the photographs were from their motorcycles. A tenth Commonwealth witness, whose motorcycle was seized at Appellant's business, testified that he purchased the motorcycle from Appellant in 1998 and later returned it to Sport Cycle and Salvage for repairs. That motorcycle had been reported stolen by a resident of New Jersey in 1992. Some of the engines bore altered serial numbers.

¶ 4 Delaware County Detective Lawrence Hughes, who also participated in the search of Appellant's business, enumerated the seized items and explained that he relayed their various identification and serial numbers to police agencies, which confirmed that the items had been reported stolen. With regard to engines found at Appellant's business, he was able to link them to motorcycles that had been reported stolen by cross-referencing the engines' serial numbers with the vehicle identification numbers recorded from the original motorcycle frames. Further, Detective Hughes testified that six sets of metal punch stamps, which often are used by individuals who operate "chop shops" to alter identification numbers found on stolen goods, were found at Appellant's business. Chop shops are businesses that illegally dismantle stolen vehicles in order to resell the parts. The detective opined that the presence of such stamps at Sport Cycle and Salvage indicated that Appellant was operating a chop shop rather than a legitimate business.

¶ 5 The Commonwealth then called Pennsylvania State Police Trooper Kurt J. Tempinski who, after being accepted by the trial court as an expert in forensic firearm and tool mark identification, opined that certain of the stamps found at Sport Cycle and Salvage had been used to alter the altered serial numbers on the motorcycle engines seized by police from that shop.

¶ 6 At trial, Appellant's strategy was to admit that the items were stolen but deny that he knew that they were stolen. Appellant estimated that there were approximately 100,000 motorcycle parts in his shop when the police executed their search warrant and said he had no knowledge that the seized items were stolen. He also denied altering identification numbers on any of the seized goods and stated that he fired Paul Dorward, a former employee who had been stealing from him, prior to the execution of the search warrant. Appellant accused Mr. Dorward of purchasing the metal punch stamps and leaving them behind. Appellant, his secretary, and Mr. Dorward were the only individuals who ever worked at Sport Cycle and Salvage.

¶ 7 Following a four-day bench trial, Appellant was convicted of one count of tampering with evidence, seven counts of receiving stolen property, eight counts of dealing in vehicles with falsified numbers, and six counts of removal or falsification of vehicle identification numbers.

¶ 8 Appellant then filed post-sentence motions in which he argued, inter alia, that trial counsel was ineffective for failing to object to Trooper Tempinski's testimony on the basis that it failed to meet the standard for the admission of expert testimony set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

¶ 9 On June 21, 2001, the trial court issued an order granting in part and denying in part Appellant's post-sentence motions. The court found that it erroneously had permitted Trooper Tempinski to testify as an expert witness in tool mark identification under Frye, id., because the Commonwealth presented no evidence that the technique used by the witness to link the metal punch stamps to the alterations on the stolen motorcycle engines was generally accepted by the scientific community. The court granted Appellant a judgment of acquittal with respect to twelve counts at issue. The trial court granted no additional relief, and this appeal and cross-appeal followed.

¶ 10 Appellant's first contention on appeal is that the evidence presented at trial was insufficient to sustain his convictions. When considering a challenge to the sufficiency of the evidence, "we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as verdict winner and determine whether the jury could find every element of the crime beyond a reasonable doubt." Commonwealth v. Romero, 555 Pa. 4, 17, 722 A.2d 1014, 1020 (1999). Any question of doubt is for the factfinder, unless the evidence is so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances. Commonwealth v. Ketterer, 725 A.2d 801, 804 (Pa.Super.1999). Additionally, this Court has observed that:

The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence.

Commonwealth v. Dellavecchia, 725 A.2d 186, 188 (Pa.Super.1998) (quoting Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992)).

¶ 11 Appellant's challenge to the sufficiency of the evidence is twofold and relates to his conviction for receiving stolen property. Appellant first contends that the Commonwealth failed to prove that the seized property actually was stolen. Second, Appellant argues that the evidence failed to establish that he possessed the requisite "guilty knowledge" to sustain his conviction. Appellant's brief at 26. We reject both claims.

¶ 12 In order to obtain a conviction for receiving stolen property, the Commonwealth must establish the following elements beyond a reasonable doubt: (1) the property was stolen; (2) the defendant was in possession of the property; and (3) the defendant knew or had reason to believe the property was stolen. Commonwealth v. Matthews, 429 Pa.Super. 291, 632 A.2d 570, 571 (1993).

¶ 13 In the instant case, Appellant argues that the Commonwealth failed to establish that the seized motorcycles and engines actually were stolen because the Commonwealth's evidence "stemmed from the testimony of the purported owners of the motorcycles, each of whom had no personal knowledge of the vehicle identification numbers or engine numbers of their respective motorcycles." Appellant's brief at 25. Since none of the witnesses were able to identify the motorcycles or engines recovered by the police as their property until informed of the vehicle identification numbers by Detective Hughes, Appellant contends that their testimony was untrustworthy. Finally, Appellant continues, since Detective Hughes relied upon hear-say information from police agencies to confirm that motorcycle frames and engines found at Sport Cycle and Salvage had been reported stolen, Detective Hughes's testimony was inherently unreliable and inadmissible.

¶ 14 Initially, we note that Appellant admitted at trial that the items were stolen. His strategy was to deny guilty knowledge based upon the volume of his business and his explanation of how he came into possession of the goods. Furthermore, as a practical matter, it is neither astonishing nor legally significant that the nine Commonwealth witnesses...