Com. v. Lawson

• Decision Date: 23 February 1995
• Citation: 650 A.2d 876,437 Pa.Super. 521
• Parties: COMMONWEALTH of Pennsylvania v. Wayne LAWSON, Appellant.
• Court: Pennsylvania Superior Court

Page 876

650 A.2d 876

437 Pa.Super. 521

COMMONWEALTH of Pennsylvania v. Wayne LAWSON, Appellant.

Superior Court of Pennsylvania.

Submitted July 11, 1994.

Filed Oct. 7, 1994.

Petition for Allowance of Appeal Denied Feb. 23, 1995.

William C. Kaczynski, Pittsburgh, for appellant.

Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before OLSZEWSKI, TAMILIA and HOFFMAN, JJ.

HOFFMAN, Judge.

This is an appeal from judgment of sentence entered November 4, 1993, for theft by deception, ¹ and criminal conspiracy. ² Appellant, Wayne Lawson, presents the following issues for our review:

1. Whether the trial court erred in finding Mr. Lawson guilty of theft by deception and criminal conspiracy and in refusing to arrest judgment thereon, where the prosecution failed to establish guilt beyond a reasonable doubt either that the alleged victim was in fact deceived or that Mr. Lawson was involved in any of the illegal acts charged. And whether the trial court erred in denying Mr. Lawson's petition for writ of habeas corpus, which raised a substantially similar sufficiency issue.

2. Whether the trial court manifestly abused its discretion in imposing an aggravated and consecutive term of imprisonment upon Mr. Lawson, where the court effectively ignored the Sentencing Code requirement that it meaningfully consider the rehabilitative needs of the defendant, where the trial court in effect punished Mr. Lawson for his "intransigence" in contesting the charges, and where the trial court failed to articulate its reasons for selecting both the aggravated range of punishment and a consecutive term of imprisonment.

Appellant's Brief at 3. For reasons stated below, we affirm.

On the morning of September 15, 1992, the victim, Grace Rizzo, was approached by one of appellant's co-defendants, Cheryl Johnson, in a store located in the downtown section of Pittsburgh. Ms. Johnson had an envelope which she claimed she had found in front of the Pittsburgh National Bank. Ms. Johnson said she was nervous and asked Ms. Rizzo to watch her open the envelope. The envelope contained what appeared to be a large amount of cash. Ms. Johnson refused to let Ms. Rizzo touch the money, or to take it to the postmaster, but suggested that they call Ms. Johnson's 'boss' (hereinafter 'boss') at Mellon Bank. After Ms. Johnson's telephone call, the two went to Mellon Bank to deliver the envelope to the boss. Ms. Rizzo was told to wait outside, while Ms. Johnson went into the bank to find her boss. The two women then went to McDonald's to have a cup of coffee while the boss inspected the money. Ms. Rizzo was subsequently informed that the envelope contained $60,000 which the women agreed to split evenly. Ms. Rizzo spoke to the boss, who questioned her about her financial holdings. Then, upon the advice of Ms. Johnson and her boss, Ms. Rizzo relinquished $16,000 in cash as security for her share of the $60,000. In addition, Ms. Rizzo agreed to return to the bank early the next morning to cash a certified check worth $9,500 as additional security. Later that evening, Ms. Rizzo called her daughter to share her good fortune. Ms. Rizzo's daughter immediately contacted the police.

On the following morning, Ms. Johnson and another co-defendant, Michael Johnson were arrested, one block from Ms. Rizzo's home, in a car registered to appellant. In the trunk of the car, the police found a packet of what appeared to be money with $100 dollar bills at either end and paper in the middle.

Following his arrest, Mr. Johnson revealed that Ms. Rizzo's money was in a hotel room, where appellant was awaiting the Johnsons' return. After verifying the information, an arrest warrant was obtained for appellant and a search warrant for the hotel room. In the room, the police found $15,000 of the stolen money. In appellant's pocket, they found the remaining $1,000 and a slip of paper with Ms. Rizzo's phone number.

Appellant was arrested and charged with one count of theft by deception and two counts of criminal conspiracy. The complaint was subsequently amended to one count of theft by deception, one count of criminal conspiracy and one count of criminal attempt. Following a preliminary hearing on September 22, 1992, appellant was held for court on all charges. On January 13, 1993, appellant petitioned the court for a writ of habeas corpus, asserting that the Commonwealth had failed to establish a prima facie case. A hearing was held and the petition was denied.

On September 22, 1993, following a bench trial, appellant was convicted of all charges. Appellant subsequently filed post-trial motions. The trial court denied appellant's written post-verdict motions but granted appellant's oral motion to arrest judgment on the count of criminal attempt. Appellant was then sentenced to two consecutive terms of three and a half (3.5) to seven (7) years imprisonment. A motion to vacate or modify sentence was filed and denied. This timely appeal followed.

Appellant first contends that the habeas corpus court erred in permitting the victim, who had previously testified at appellant's preliminary hearing, to give additional testimony. We disagree.

A petition for habeas corpus relief must specifically allege facts, which if true would entitle the defendant to an award of writ of habeas corpus. Balsamo v. Mazurkiewicz, 417 Pa.Super. 36, 611 A.2d 1250 (1992). However, where a defendant requests a writ of habeas corpus on the grounds that the Commonwealth has failed to establish a prima facie case, the Commonwealth may present further evidence to ensure that it has established a prima facie case. Commonwealth v. Morman, 373 Pa.Super. 360, 541 A.2d 356 (1988) (the purpose of a habeas corpus proceeding is not merely to review the prior preliminary hearing but rather to determine the legality of the existing restraint on the petitioner's liberty). The evidence may consist of evidence previously presented at the preliminary hearing as well as any additional evidence. Id. Therefore, the Commonwealth was entitled to have the victim testify at the habeas corpus proceeding.

Appellant further argues that the testimony presented at the habeas corpus proceeding was inconsistent with the victim's prior testimony, it should have been stricken. Appellant notes that the victim's preliminary hearing testimony had indicated that she had been cognizant of the scheme.

A witness' testimony may be presented as substantive evidence although it is inconsistent with her prior testimony. Commonwealth v. Hayes, 408 Pa.Super. 314, 596 A.2d 874 (1991). On cross-examination, the opposing party may use the inconsistent testimony to impeach the witness' credibility. Id. The hearing judge, as factfinder, then weighs all the evidence and judges the credibility of the witnesses. 17 Pa.Law Encyclopedia § 37. Here, the victim testified at the habeas corpus hearing that she had been tricked into giving the conspirators $16,000. The trial court believed the victim's habeas corpus testimony. Moreover, the court determined that the Commonwealth had presented a prima facie case against appellant. As the trial court's finding is adequately supported by the record, we must deny appellant his requested relief.

Appellant next contends that the evidence at trial was insufficient to prove that the victim was deceived by the scheme. We disagree.

A defendant may be convicted of theft by deception if he intentionally obtains property from another person by deception. 18 Pa.C.S. § 3922. The Commonwealth must demonstrate not only the presence of a false impression but that the victim relied upon that impression. Commonwealth v. Imes, 424 Pa.Super. 633, 623 A.2d 859 (1993).

In the instant case, the victim testified that she had believed that she would receive the $30,000 promised to her. Cf. id. (theft by deception could not be established where the State failed to present evidence that there was any victim who had been deceived by the defendant). Again, appellant notes that the victim had previously testified that she had known that she would not receive any money from the conspirators. However, the trial court as fact-finder weighed the inconsistencies in the victim's testimony and determined that she had indeed relied upon the false impression created by the scheme. Commonwealth v. Sullivan, 399 Pa.Super. 124, 130, 581 A.2d 956, 959 (1990) (the fact-finder may believe all, part or more of none of the evidence presented). The victim's trust in the strangers is apparent from her actions. The victim had spent the entire day with Ms. Johnson and allowed Ms. Johnson into her home. In reliance upon the assurance that she was to receive $30,000, the victim revealed her financial status to the boss and relinquished a total of $16,000 to the conspirators. See, e.g., Commonwealth v. Morin, 237 Pa.Super. 533, 352 A.2d 189 (1975), reversed on other grounds 477 Pa. 80, 383 A.2d 832 (1978) (that elderly woman had been deceived was apparent where she had given a huge sum of money to a stranger). In addition, once the victim realized that she had been conned and the police informed of the scheme, the victim fully cooperated with them in an effort to apprehend the wrongdoers and retrieve her money. Any vague suspicion or amazed disbelief in her windfall which the victim may have entertained was clearly insufficient to displace her belief that she would receive the money. Accordingly, the evidence was sufficient to demonstrate that the victim had been deceived by the scheme.

Next, appellant also argues that the evidence was insufficient to demonstrate his complicity in the scheme. We disagree.

In order to prove criminal conspiracy, the Commonwealth must show an agreement between or among co-conspirators. Commonwealth v. Allen 425 Pa.Super. 615, 625 A.2d 1266 (1993). The existence of such an agreement need not be demonstrated by direct evidence, but may be "inferentially established by showing the relation, conduct or...