Com. v. Levenson

• Decision Date: 24 December 1980
• Citation: 422 A.2d 1355,282 Pa.Super. 406
• Parties: COMMONWEALTH of Pennsylvania, v. Oliver LEVENSON, Appellant.
• Court: Pennsylvania Superior Court

Page 1355

422 A.2d 1355

282 Pa.Super. 406

COMMONWEALTH of Pennsylvania, v. Oliver LEVENSON, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 16, 1979.

Filed Sept. 12, 1980.

Reargument Denied Dec. 24, 1980.

James E. McLaughlin, Pittsburgh, for appellant.

Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before SPAETH, HOFFMAN and VAN der VOORT, JJ.

SPAETH, Judge:

Appellant was convicted on eight counts of receiving stolen property and one count of criminal conspiracy. He was fined $20,000 and sentenced to a term of imprisonment of not less than two nor more than seven years. The convictions arose out of a series of burglaries committed in the East End of Pittsburgh during the summer and fall of 1976. A pattern emerged from the burglaries disclosing that the perpetrators primarily stole certain types of items-jewelry, sterling silver, oriental rugs, guns, and cameras. On November 16, 1976, Jack Ackerman, one of the burglars, was apprehended in the course of a burglary. Ackerman implicated James Wilde as a second burglar and Albert Brenner as the fence for the goods stolen during the burglaries. Brenner, in turn, implicated Charles Litman as the secondary fence for stolen silverware, David Nazarieh as the secondary fence for stolen rugs, and appellant as the secondary fence for stolen jewelry. Appellant was tried separately.

Appellant first argues that he should be discharged because the information containing the charges against him was signed "Robert E. Colville by C.G.C./ Attorney for the Commonwealth." According to appellant, to be valid, the information had to be signed personally by Robert Colville, the District Attorney for Allegheny County, see Pa.R.Crim.P. 225(b), and since it was signed instead by "C.G.C.", it is void. ¹ However, 42 Pa.C.S.A. § 8931(e), (i) (1979 Pamphlet), provides that an information may be signed by "any assistant district attorney whose authority to act for the district attorney ... is evidenced by a written designation executed by the district attorney ... and filed with the clerk of the courts." See also Commonwealth v. Vickers, 260 Pa.Super. 469, 394 A.2d 1022 (1978) (information signed by department head in district attorney's office is valid). Appellant does not dispute the representation in the Commonwealth's brief that "C.G.C." are the initials of Chris G. Copetas, First Assistant District Attorney of Allegheny County, who signed the information as the district attorney's designee. Nor has appellant argued that the district attorney failed to execute and file with the clerk of the courts a written designation authorizing Copetas to act for him. We reject appellant's argument that the information is void because Copetas failed to sign his full name on the information. In the absence of a specific requirement as to the manner of signing the information, we believe that the signature required need not be made in any particular manner so long as it is subject to identification. As we stated in Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978), the signature of the district attorney (or his designee) on an information is required to guarantee the information's authenticity and to ensure that a reasoned evaluation of the advisability of instituting a criminal action has been made by a responsible person. These purposes were satisfied here when Copetas signed the district attorney's name to the information followed by his own initials.

Appellant argues next that he is entitled to a new trial because his conviction was obtained on the uncorroborated testimony of admitted perjurers, whose perjury the Commonwealth condoned. ² We have been directed by appellant to no evidence showing that the Commonwealth condoned perjury at appellant's trial, or committed other improper acts. Appellant's primary complaint is that the Commonwealth condoned the perjury of two of its witnesses at the separate trial of Charles Litman. ³ Without expressing any view on whether the Commonwealth did or did not condone perjury during the Litman trial, it is sufficient to note that there is no showing that the improprieties that may have occurred in that trial denied appellant his right to a fair trial.

The fact that two Commonwealth witnesses (Jack Ackerman and Albert Brenner) admitted on the stand during appellant's trial that they had lied under oath during the Litman trial did not make them incompetent witnesses as neither had been convicted and sentenced for perjury. See Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167 (1976); Commonwealth v. Orlosky, 264 Pa.Super. 598, 401 A.2d 756 (1979); Commonwealth v. Shadduck, 168 Pa.Super. 376, 77 A.2d 673 (1951); Commonwealth v. Billingsley, 160 Pa.Super. 140, 50 A.2d 703, aff'd, 357 Pa. 378, 54 A.2d 705 (1947). ⁴ Brenner's testimony that appellant bought stolen jewelry from him knowing it was stolen, though largely uncorroborated, was sufficient to convict appellant. Commonwealth v. Willis, --- Pa.Super. ---, 419 A.2d 70 (1980); Commonwealth v. Thompson, 181 Pa.Super. 572, 124 A.2d 180 (1956), aff'd, 388 Pa. 572, 131 A.2d 449, cert. denied, 354 U.S. 923, 77 S.Ct. 1384, 1 L.Ed.2d 1438 (1957); see generally Commonwealth v. Arizini, --- Pa.Super. ---, 419 A.2d 643 (1980). As we stated in Commonwealth v. Bartell, 184 Pa.Super. 528, 537, 136 A.2d 166, 171 (1957):

If a witness has made inconsistent or contradictory statements they may affect his credibility ... but they do not make him an incompetent witness. In fact, even if a witness testified differently at a former trial his testimony at the subsequent trial is not to be rejected for this reason alone; such contradictory statements " 'affect his credibility, but do not authorize an instruction to the jury not to believe him.' " (Citations omitted.)

Nor has appellant demonstrated that either Ackerman or Brenner gave material false testimony in this case. Appellant complains that Brenner testified that prior to his arrest he met with Wilde and Ackerman five or six times, Record at 260a, while at the subsequent trial of Wilde, Brenner testified that he had seen Ackerman and Wilde together approximately a dozen times, Record at 666a-67a. Appellant has not explained how this minor variance on a collateral point had any effect on the jury's verdict. ⁵ Similarly, appellant has not explained the significance of the variance in Brenner's testimony at appellant's and Wilde's trials as to whether on the night of his arrest Ackerman told him that he had committed the burglaries. (At Wilde's trial Brenner stated that Ackerman made such an admission, Record at 683a-84a; at appellant's trial, Brenner stated that he did not hear Ackerman make an admission but knew that such an admission had been made, Record at 324a-25a.) ⁶ The remaining instance of Brenner's alleged false testimony occurred when Brenner testified that he had been informed by the prosecuting district attorney that his plea bargain with the Commonwealth had been denied by the trial court. ⁷ Record at 289a-90a, 302a. At Wilde's trial, Brenner stated that the prosecuting attorney never said this. Record at 699a. We fail to see, however, how appellant was prejudiced by this misrepresentation. Although Brenner testified that his plea bargain had been denied, he also testified that at the time of appellant's trial he was awaiting sentencing on his pleas, that the district attorney had recommended a sentence of one to five years imprisonment to the sentencing judge, and that although he had "no guarantee", he hoped to receive the recommended sentence. See Record at 251a-53a, 288a-91a; see generally 302a-09a, 366a-67a. ⁸ Given Brenner's admission that he was seeking leniency for his own crimes in return for his testimony against appellant and his "hope" that leniency would be forthcoming, the jury could hardly have been confused as to Brenner's interest in the case. See generally Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d 909 (1978); Commonwealth v. Moehring, 445 Pa. 400, 285 A.2d 487 (1971); Commonwealth v. Floyd, 259 Pa.Super. 552, 393 A.2d 963 (1978). In addition, the jury knew 1) that Brenner had lied under oath at the Litman trial; 2) that Brenner had attempted to extort bail money from appellant; 3) that Brenner was appellant's accomplice; and 4) that Brenner had a prior criminal record. The crucial facts affecting Brenner's credibility were therefore before the jury for it to assess.

Appellant cites Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), for the proposition that a new trial is required in the interests of justice because "the uncorroborated testimony of Ackerman and Brenner was so laden with perjury that the entire proceeding was fatally tainted." Mesarosh, simply put, is distinguishable, and as the lies and wrongdoings of the witnesses here were disclosed to the jury who tried him, appellant's argument is, in essence, that the jury's verdict was contrary to the weight of the evidence. It is almost too settled for citation that the weight of the evidence is an issue for the jury to determine. E. g., Commonwealth v. Fultz, 478 Pa. 207, 386 A.2d 513 (1978); Commonwealth v. Jeter, --- Pa.Super. ---, 418 A.2d 625 (1980).

Appellant argues next that the lower court instructed the jury inadequately regarding the weight that should be given to the testimony of an admitted perjurer. At the conclusion of the court's charge, appellant's counsel asked that as Brenner had admitted lying at the Litman trial, the court give the "charge that deals with perjury, about rejecting all and believe some." Record at 568a. ⁹ Counsel did not otherwise explain to the court the charge he wished it to give, nor has he informed this court. From his citation of Commonwealth v. Loomis, 267 Pa. 438, 110 A. 257 (1920), and Commonwealth v. Alessio, 313 Pa. 537, 169 A. 764 (1934), we assume that counsel wished the court to instruct the jury that if the jury found that Brenner had testified...