Com. v. Goldhammer

• Decision Date: 24 January 1984
• Docket Number: No. 1107,1107
• Citation: 322 Pa.Super. 242,469 A.2d 601
• Parties: COMMONWEALTH of Pennsylvania, v. Benjamin GOLDHAMMER, Appellant.
• Court: Pennsylvania Superior Court

Page 601

469 A.2d 601

322 Pa.Super. 242

COMMONWEALTH of Pennsylvania, v. Benjamin GOLDHAMMER, Appellant.

No. 1107.

Superior Court of Pennsylvania.

Argued May 13, 1983.

Filed Nov. 10, 1983.

Reargument Denied Jan. 24, 1984.

Stanford Shmukler, Philadelphia, for appellant.

Mariana C. Sorensen, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.

PER CURIAM:

Appellant Benjamin Goldhammer was convicted of 56 counts each of theft by unlawful taking and forgery following a non-jury trial before the Honorable Michael E. Wallace. Post-trial motions were denied and appellant was sentenced to two consecutive sentences of imprisonment. The court granted appellant's petition for modification of sentence and resentenced him to a two to five year term of imprisonment on one count of theft and five years probation on one count of forgery. Sentence on the remaining counts was suspended.

On this direct appeal, appellant raises the following issues:

(1) The court erred in refusing to suppress evidence obtained from appellant's attorney, from his bank and pursuant to an arrest warrant, the affidavit for which contained inaccurate information.

(2) The evidence was insufficient to sustain the forgery convictions.

(3) Many of the theft charges were barred by the statute of limitations.

We affirm in part and reverse in part.

Appellant had been employed as controller for Lessner and Company, Inc., a mechanical contracting corporation, since 1974. In February 1979, appellant suffered a heart attack while on vacation in Las Vegas. Henry J. Lessner, the president of the corporation, began to review the current bank statements and cancelled checks in appellant's absence. After investigation, he discovered a total of 57 checks ¹ bearing the apparently forged signature of Richard J. Kates, one of the authorized signatories. It was ultimately discovered that these checks had either been cashed by appellant or deposited into his checking account. The evidence presented at trial included certain of appellant's bank records which had been given to Lessner's counsel by appellant's counsel, records which had been obtained from appellant's bank pursuant to a lawful subpoena issued after appellant's arrest, testimony from Mr. Lessner and Mr. Kates and the testimony of a questioned document examiner who compared the handwriting on the checks in question with exemplars obtained from appellant, Mr. Kates and Mr. Lessner.

Appellant first argues that the court should have suppressed the bank records obtained by Lessner's attorney from appellant's attorney. These records were volunteered to Lessner's attorney for the purpose of convincing Lessner that appellant had spent most of the money and to induce Lessner to accept a settlement in the form of a second mortgage on appellant's house. No settlement was ever worked out and Lessner subsequently turned the bank records over to law enforcement officials after he had filed the criminal complaint. It has long been established that the Fourth Amendment's prohibition against illegal search and seizure applies only to the actions of governmental authorities, not to the actions of private persons. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The government is precluded from using evidence obtained by a private person only if that person acted as an instrument or agent of the state. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The records in question were obtained by Lessner and his attorney long prior to any governmental knowledge or action in this matter. Therefore, the court was correct in refusing to suppress this evidence.

Appellant further argues that the bank records obtained from Fidelity Bank should have been suppressed under Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979). In DeJohn, the defendant's bank records were obtained pursuant to a concededly invalid subpoena at a time prior to the institution of criminal charges against her. The Supreme Court held that a bank depositor has a sufficient privacy interest in bank records so as to have standing to challenge the illegal seizure of same (i.e., pursuant to an invalid subpoena). In the instant case, the records were obtained pursuant to a valid warrant; appellant advances no reason why the seizure is otherwise illegal. DeJohn does not compel suppression under these circumstances. Indeed, the Supreme Court in DeJohn noted that "A bank could always be compelled to turn over customer's records when served with a valid search warrant or some other type of valid legal process, such as a lawful subpoena." Commonwealth v. DeJohn, 486 Pa. 32, 48, 403 A.2d 1283, 1291 (1979). It was not, therefore, error to refuse to suppress the records obtained from Fidelity Bank.

Finally, appellant sought to suppress evidence obtained as a result of the arrest warrant because the affidavit contained a misstatement. In order to invalidate an arrest warrant, a misstatement of fact in the affidavit must be both material and deliberate. Commonwealth v. Bradshaw, 290 Pa.Super. 162, 434 A.2d 181 (1981). It is undisputed that the misstatement in this case was unintentional. Moreover, the trial court found, and we agree, that deletion of the misstatement from the affidavit would still leave sufficient facts...