Com. v. Johnston

• Decision Date: 08 June 1994
• Citation: 434 Pa.Super. 451,644 A.2d 168
• Parties: COMMONWEALTH of Pennsylvania v. Jeffrey JOHNSTON, Appellant.
• Court: Pennsylvania Superior Court

Page 168

644 A.2d 168

434 Pa.Super. 451

COMMONWEALTH of Pennsylvania v. Jeffrey JOHNSTON, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 16, 1993.

Filed June 8, 1994.

Elliot Jay Segel, Erie, for appellant.

Joseph P. Conti, Asst. Dist. Atty., Erie, for the Com., appellee.

Before DEL SOLE, TAMILIA and HESTER, JJ.

DEL SOLE, Judge:

Jeffrey Johnston appeals from the judgment of sentence entered, by the Court of Common Pleas of Erie County, following guilty verdicts on the charges of criminal conspiracy (18 Pa.C.S.A. § 903), burglary (18 Pa.C.S.A. § 3502), theft by unlawful taking or disposition (18 Pa.C.S.A. § 3921), and criminal mischief (18 Pa.C.S.A. § 3304). A Motion for Arrest of Judgment was granted for lack of sufficient evidence on the conviction for criminal mischief. Post-verdict motions were filed and denied. Appellant received a sentence of two to five years with five years probation consecutive to incarceration on the burglary conviction, and ten years probation for criminal conspiracy to be served consecutive to the probation on the burglary. Appellant filed this timely appeal. We reverse.

The following are the issues as framed by appellant:

I. The Commonwealth's concealment of material and exculpatory evidence, namely its plea bargained arrangement with appellant's alleged co-defendant/accomplice; its failure at trial to correct said witness' false and/or misleading denials of any such arrangement, and its participation in eliciting this misleading evidence through its direct examination of this witness; and its knowing exploitation of this misleading impression in closing argument all constituted prosecutorial misconduct and violated appellants state and federal constitutional rights to due process of law, a fair trial, and confrontation of adverse witnesses.

II. Appellant was denied his state and federal constitutional rights to the effective assistance of counsel.

Appellant met a man by the name of Robert Klingensmith while patronizing a bar called Rum Runners. Appellant and Klingensmith talked about a variety of issues and drank together for three or four hours. When they ran out of money, Klingensmith told appellant that he was formerly employed by McCormick Materials and there was a possibility that they could obtain money there. Klingensmith was referring to money in the petty cash fund used by the employees to buy soft drinks. Appellant expressed interest in tools and wanted to go with Klingensmith to McCormick Materials. They decided to meet later that night at a different bar called Haggerty's. Appellant left his car at Haggerty's and accompanied Klingensmith. The two men went to a supermarket where they bought rubber gloves and then proceeded to McCormick Materials.

Arriving at their destination, they went to the south end of the building where Klingensmith used a screwdriver to pry open the door and enter the building. In the lunchroom, Klingensmith took petty cash from the drawer. They continued to walk through the building taking items including weigh scales and looking for tools. They went to a garage and took ratchets, wrenches, sockets, hand tools and some power tools. They also took a service truck after loading it with an air compressor, a sump pump and mig welder. Appellant drove the truck and Klingensmith left in his own car. Appellant suggested that they go to a certain garage and unload and sell the materials. The garage was closed when they arrived, but they found the garage operators after unloading the truck. They left the garage and abandoned the vehicle behind a building about seven blocks away. Before leaving, they sprayed the truck with WD-40 to eliminate any fingerprints that might have been left. The Erie police found the truck the following day.

Before addressing the first issue, we will respond to the contention raised by appellee that appellant has waived his right to challenge the pre-trial and trial conduct of the prosecutor and/or the trial court due to the failure to include this claim in the concise statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). "The purpose of the Pa.R.A.P. 1925(b) statement is to specify the particular issues which appellant intends to present on appeal in order to permit the trial court an opportunity to provide the appellate court with a focused and meaningful explanation for any challenged actions in its Pa.R.A.P. 1925(a) opinion." Commonwealth v. Osteen, 381 Pa.Super. 120, 552 A.2d 1124 (1989).

Appellant asserts that the 1925(b) statement was filed by the newly-retained appellate counsel who was not aware of these issues, since the trial transcripts had not been timely prepared prior to the filing deadline for the 1925(b) statement. New counsel notes in the 1925(b) statement that he was not retained by appellant until after the April 15, 1993 sentencing hearing. Before appellate counsel was retained, he did not have knowledge of these proceedings and had limited time to communicate with his client who was transferred to a Correctional Institution in another county after sentencing. Counsel requested, in the 1925(b) statement, that it not be considered all inclusive. The trial transcripts were available for new-counsel's review one day before the 1925(b) statement was due.

Appellees nonetheless argue that new-counsel should have filed a motion for an extension of time to review the transcripts, and since he did not, the issue should be waived. "Failure to raise a particular issue in the concise statement of matters complained of on appeal may result in waiver of that issue if that failure makes appellate review difficult." Commonwealth v. Forest, 427 Pa.Super. 602, 629 A.2d 1032, 1035 (1993). In Osteen, supra, this court did not waive the issues on appeal even though they were not in the 1925(b) statement because dismissal of the appeal on the basis of procedural default would inappropriately put the burden of such default on the defendant rather than the offending counsel; additionally, with criminal appeals, dismissal would result in further delay and expense through collateral appeals raising the ineffectiveness of counsel. Since appellate counsel did not have sufficient time to review the trial transcripts and our review of the issue is not impaired by the failure to include it in a 1925(b) statement, we decline to exercise our discretion to consider the issue waived.

Appellant's first allegation of error is that the Commonwealth concealed the plea bargain agreement of its chief witness from the defense resulting in an unfair trial and a violation of appellant's due process rights. By not divulging the information regarding the plea bargain or correcting the testimony of the chief witness, the prosecutor misled the jury and allowed it to believe that the chief witness did not receive favorable treatment from the Commonwealth. The chief prosecution witness in this case was Robert Klingensmith, appellant's co-defendant. Klingensmith was sentenced by the Honorable Stephanie Domitrovich, the judge presiding in appellant's case, prior to appellant's trial.

Klingensmith pled guilty on January 6, 1993 and signed a document entitled "Defendant's Statement of Understanding of Rights Prior to Guilty/No Contest Plea". (RR. 405a). Question five of the document inquires regarding a plea bargain and the typed portion of the response says "none. The defendant will plead guilty to Counts 1, 2, 3 and Count 4 will be nolle prossed with costs on defendant. BHF:jac." Immediately following this sentence in handwriting it is noted that "[t]he Commonwealth will have no objection to a county sentence based upon a favorable pre-sentence and full cooperation against any co-defendants. BF." (RR. 401). Furthermore, at co-defendant Klingensmith's sentencing hearing, the Commonwealth's attorney, Mr. Zak, commented:

Mr. Zak: If I may, if counsel has no objection, I'd like to ask the defendant a question. I don't know what's happened with Mr. Johnston's case right now, your co-defendant. Are you still willing to testify in that case?

Mr. Klingensmith: Yes.

. . . . .

Mr. Zak: As far as the Commonwealth is concerned, first of all, we have a fairly extensive presentence report, mainly the police report, which says something about ... defendant's statement and cooperation....

We have no problem with going ahead with the sentencing at this point, given the defendant's statements.

Sentencing transcript 2-16-93 at 10-11 (RR.417a-418a).

Judge Domitrovich then sentenced Klingensmith as follows:

As to the sentence, the sentence is within the standard range. The Court has given the defendant a county incarceration sentence, since this was part of the plea bargain with the District Attorney's Office. The Court has taken into consideration the defendant has agreed to provide truthful cooperation in regard to a co-defendant ...

Sentencing transcript 2-16-93 at 16. Klingensmith received a sentence of incarceration of eleven and one-half months to twenty-three and one-half months followed by eight years probation. The other sentences were concurrent. Six days later, Judge Domitrovich entered an order granting Klingensmith a sentence of partial confinement so that he could be placed in the Work-Release Program.

Prior to appellant obtaining representation by the Erie County Public Defender's Office, appellant represented himself pro se. Appellant filed a pro se Motion for Pre-Trial Discovery on January 11, 1993. In its response, the Commonwealth revealed some statements by Klingensmith implicating appellant in the crimes; however, the plea bargain arrangement was not disclosed. When a public defender was appointed to represent appellant, another discovery request was made and the plea bargain between the Commonwealth and appellant was not included in the information. These discovery requests were made after Klingensmith pleaded guilty and agreed to assist the Commonwealth.

Appellant argues that the plea bargain...