Com. v. Johnson

• Decision Date: 01 March 1985
• Citation: Com. v. Johnson, 489 A.2d 821, 340 Pa.Super. 26 (Pa. Super. Ct. 1985)
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Charles F. JOHNSON, Appellant.
• Court: Pennsylvania Superior Court

Page 821

489 A.2d 821

340 Pa.Super. 26

COMMONWEALTH of Pennsylvania, Appellee, v. Charles F. JOHNSON, Appellant.

Superior Court of Pennsylvania.

Submitted March 13, 1984.

Filed March 1, 1985.

Marsha A. McClellan, Asst. Public Defender, West Chester, for appellant.

James R. Freeman, Dist. Atty., West Chester, for Commonwealth, appellee.

Before CAVANAUGH, WIEAND and CIRILLO, JJ.

CAVANAUGH, Judge:

The appellant, Charles F. Johnson, was found guilty in the Court of Common Pleas of Chester County of unauthorized use of a motor vehicle, theft by receiving stolen property, and theft by unlawful taking. Appellant's motions for new trial and in arrest of judgment were denied and appellant was sentenced. This is an appeal from that judgment of sentence. We affirm.

Appellant's convictions stemmed from an incident that occurred on August 16, 1980 at approximately 3:30 A.M. The appellant was sitting behind the wheel of a pickup truck that was "hung up" on a guardrail partially blocking a roadway. When the police approached, the defendant slid out of the truck through the driver's side door. Because of its position against the guardrail, it was impossible to get out of the truck through the passenger door. Although the pickup was without power and totally inoperable, the key was in the ignition.

When questioned by the police, the appellant stated that he was walking and he went to give another person help getting the truck in gear. However, the appellant was unable to give police a description of this other individual even though he later testified that he had known this person for fifteen years. The appellant told the police that the other individual left the scene through the nearby woods.

On appeal, Johnson argues that the evidence was insufficient to prove guilt beyond a reasonable doubt; that the trial court erred in admitting evidence of appellant's prior convictions for unauthorized use of a motor vehicle; and that it was improper for the prosecutor to characterize appellant's statements to the police as a "story."

The statute defining unauthorized use of an automobile, 18 Pa.C.S. § 3928, makes it an offense if the actor "operates" a motor vehicle without the consent of the owner. The appellant points out that at the time the police observed him behind the wheel, the truck was not running, its lights were not on, and it appeared to be out of commission. Consequently, appellant claims, the Commonwealth failed to show he was "operating" the truck for purposes of the statute, since there wasn't any direct evidence that appellant was actually operating the vehicle in motion.

As the lower court correctly points out, however, the Commonwealth is not required to prove that the appellant was operating the vehicle in motion. The Commonwealth need only show that the defendant was in the vehicle behind the wheel and had control and management of it. Commonwealth v. Taylor, 237 Pa.Super. 212, 352 A.2d 137 (1975). In addition, the evidence in this case is sufficient to permit an inference that the pickup truck got where it was and in the condition it was in because the appellant had control over it. Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375, 384 (1974). We are satisfied that the jury had sufficient evidence to find that appellant did "operate" the vehicle within the meaning of the statute.

Appellant also contends that there was insufficient evidence to support his convictions for receiving stolen property and theft by unlawful taking. These claims were correctly dismissed by the lower court and do not merit any further discussion.

The next issue raised by appellant concerns whether or not the lower court properly admitted evidence of appellant's prior convictions for unauthorized use of motor vehicles. The decision to admit evidence of prior convictions is within the discretion of the trial judge, whose decision will not be reversed absent an abuse of discretion. Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Kearse, 326 Pa.Super. 1, 473 A.2d 577 (1984).

Judge Wieand, in his dissent, cites Commonwealth v. Hogan, 321 Pa.Super. 309, 468 A.2d 493 (1983), a case he authored, for the principle that a dishonest intent is not an element of the offense and that therefore it cannot be used to impeach appellant. We do not think Hogan compels this conclusion. We note that in his brief, appellant argues only that other factors weigh against the admission of the prior conviction because they tend to prejudice the appellant. He does not argue that dishonesty is not an element of the offense. Furthermore, our review of the record indicates that this argument was not raised at trial. ^* Nor was it raised in appellant's post-verdict motions. "It is of course elementary that issues not preserved for appellate review or, even if preserved at the trial level, not raised by a party on appeal, will not be considered by an appellate court ... an appellate court is not to raise sua sponte issues which it perceives in the record where, as here, those issues are not presented at the appeal level." Commonwealth v. McKenna, 476 Pa. 428, 437, 383 A.2d 174, 179 (1978). See also Commonwealth v. Simmons, 504 Pa. 565, 475 A.2d 1310 (1984); Commonwealth v. Lobiondo, 501 Pa. 599 n. 6, 462 A.2d 662 n. 6 (1983); Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975); Phillips Home Furnishings, Inc. v. Continental Bank, 467 Pa. 43, 46-47, 354 A.2d 542, 543-544 (1976).

In Hogan, we held that in order to convict one for unauthorized use of a vehicle, it is sufficient to show that the accused acted with recklessness "with respect to the lack of the owner's consent. A person acts recklessly with respect to such lack of consent if he consciously disregards a substantial and unjustifiable risk that the owner has not consented." Hogan, 321 Pa.Super. at 313, 468 A.2d at 495-96. (Emphasis Added.) The conscious disregard of a substantial and unjustifiable risk that one's use of property lacks the true owner's consent suggests that dishonesty is an element of the offense, and it cannot be disregarded no matter what gloss of "recklessness" is placed upon it.

The term "reckless" is used here to mean a conscious disregard for another's property rights. It suggests something more than even gross carelessness. It reflects adversely on the offender's trustworthiness, on his integrity in his dealings with others, and on his truthfulness.

We note that the crime of unauthorized use is similar to other theft related offenses which have been held to include an element of dishonesty (theft and robbery, Commonwealth v. Henderson, 497 Pa. 23, 438 A.2d 951 (1981); larceny, Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979); burglary, Commonwealth v. Hutchinson, 290 Pa.Super 254, 434 A.2d 740 (1981)).

Having properly determined that this offense involves dishonesty, the lower court then applied the balancing test set forth in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). As a result, there is no indication that the lower court abused its discretion. In addition, the trial court gave a strong cautionary instruction to the jury. Consequently, appellant's contention is without merit.

Lastly, appellant maintains that he is entitled to a new trial because the prosecuting attorney, in his closing argument, referred to the appellant's statements to the police as a "story." After reviewing the record and noting that the trial judge gave a curative instruction to the jury we hold that this remark did not unduly prejudice the jury and does not warrant a new trial.

Judgment of sentence affirmed.

WIEAND, J., files dissenting opinion.

WIEAND, Judge, dissenting:

I respectfully dissent. In my judgment it was an abuse of discretion to permit the Commonwealth to attack appellant's credibility by showing two prior convictions for unauthorized use of a motor vehicle. I would reverse and remand for a new trial.

Charles F. Johnson was being tried for theft and unauthorized use of a motor vehicle. He had been found behind the wheel of a stolen pickup truck at 3:30 a.m. after the truck had become "hung-up" on a guardrail. Johnson testified that the truck had been driven by a friend and that he, Johnson, had not been aware of the fact that the truck had been stolen. The Commonwealth was then permitted, over objection, to attack his credibility by showing that on two prior occasions Johnson had been convicted of unauthorized use of an automobile. Johnson's objection, contained in a motion in limine, was based specifically on decisions of the Supreme Court in Commonwealth v. Bighum ¹ and Commonwealth v. Roots ² (N.T. 35, 36). After the jury had returned a verdict finding Johnson guilty of theft by unlawful taking, theft by receiving stolen property and unauthorized use of a vehicle, Johnson filed a motion for new trial in which he preserved for review the trial court's ruling. On direct appeal from the judgment of sentence, Johnson argues, inter alia, that "the trial court erred in admitting evidence of the appellant's prior convictions." (Appellant's brief, p. 3, Statement of Questions).

Prior to the Supreme Court's decision in Commonwealth v. Bighum, supra, the law was clear that if a defendant in a criminal case took the stand in his own behalf, the Commonwealth could introduce rebuttal evidence of a prior conviction for a felony or a misdemeanor crimen falsi to attack the defendant's credibility. Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961), cert. denied, 368 U.S. 945, 82 S.Ct. 384, 7 L.Ed.2d 341; Commonwealth v. Kostan, 349 Pa. 560, 37 A.2d 606 (1944). The theory was that "[i]f a defendant offer[ed] himself as a person worthy of belief, the jury ha[d] the right to know what kind of man he [was]--to aid in assessing his credibility." Commonwealth v. Butler, supra 405 Pa. at 47, 173 A.2d at 474. This imposed an almost impossible burden on the members of the jury. For a juror to limit his or her consideration of a...