Com. v. Newman

• Decision Date: 27 February 1989
• Citation: 382 Pa.Super. 220,555 A.2d 151
• Parties: COMMONWEALTH of Pennsylvania v. Albert NEWMAN, Appellant.
• Court: Pennsylvania Superior Court

Page 151

555 A.2d 151

382 Pa.Super. 220

COMMONWEALTH of Pennsylvania v. Albert NEWMAN, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 24, 1988.

Filed Feb. 27, 1989.

Joseph S. O'Keefe, Norristown, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.

Before POPOVICH, MELINSON and HESTER, JJ.

MELINSON, Judge.

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County in which Appellant, Albert Newman, was sentenced to imprisonment for convictions of aggravated assault,¹ possession of an instrument of crime,² and simple assault.³ We affirm.

On 1 August 1986, Minnie Mae Major was parking her automobile near her home in Philadelphia, Pennsylvania. She noticed Newman lurking behind a tree in a vacant lot across the street. She knew Newman because he had lived with her recently deceased daughter, Sarah Rhodes. As Mrs. Major was about to exit from the automobile, Newman appeared at the side window, pointed a gun at her, and ordered her to get out of the vehicle. Instead of exiting from the automobile, she restarted her vehicle and sped off while Newman fired several shots at the vehicle. Newman also fired shots at Elijah Major, Mrs. Major's husband, when he appeared in the doorway of his home after hearing the gunshots. Later that evening, Newman telephoned Mrs. Major informing her that: he blamed her for the death of her daughter; he wanted to kill Mrs. Major; and, he would succeed in killing her next time.

After the shooting incident, police detectives arrived at the Major's home and showed Mrs. Major a photographic array from which she identified Newman as the gunman. Three days after the incident, Newman fled to New York. He was arrested eight months later in New York and returned to Philadelphia.

The Honorable Francis A. Biunno presided over a jury trial at which Newman was convicted of aggravated assault on Mrs. Major, simple assault on Mr. Major, and possession of an instrument of crime. Post-trial motions were filed and denied. Judge Biunno sentenced Newman to serve five (5) to ten (10) years of imprisonment for aggravated assault, one (1) to two (2) years of imprisonment, consecutive to the aggravated assault, for simple assault, and five (5) years of probation consecutive to the first two convictions for possession of an instrument of crime. This direct appeal follows.

On appeal, Newman asserts thirteen (13) issues for our consideration. We quote from his brief as follows:

I. Did the Learned Trial Court err in denying the defendant's motion to dismiss Rule 1100 and in granting the Commonwealth's Petition to Extend Rule 1100?

2. Did the Learned Trial Court err in refusing to allow the defendant's psychiatrist to testify?

3. Did the Learned Trial Court err in refusing to allow an expert witness, Professor Abrams of the University of Pennsylvania, from testifying? [sic]

4. Did the Learned Trial Court err in refusing to sever the charges of theft of a gun occurring on July 27, 1986 from the numerous assault charges averred of August 1, 1986?

5. Did the Learned Trial Court err in failing to charge the jury that the Commonwealth muyst [sic] prove beyond a reasonable doubt, that what occurred was under circumstances maifesting [sic] an extreme indifference to the value of human life?

6. Did the Learned Trial Court err in fialing [sic] to charge the jury as to the limitations of the significance of the addresses to which the detective refferred [sic]?

7. Did the Learned Trial Court err in denying the defense the right to ask prospective venireman [sic] whether or not they believed a reasonable man could believe in the religion of Voodoo?

8. Did the Learned Trial Court err in overruling the objections of the defense to the hearsay statements presented during the course of the trial?

9. Did the Learned Trial Court err in overruling the defense objections to the testimony by Dective [sic] Hughes that the defendant was arrested in another jurisdiction?

10. Did the Learned Trial Court err in refusing to appoint to the defendant new counsel prior to the commencement of trial?

11. Was Trial Counsel ineffective in failing to argue during Rule 1100 hearing that the oral amendment were annulity [sic] and that there was no prompt hearing and that the District Attorney's Petition contained only general averments?

12. Was Trial Counsel ineffective in failing to argue during the Motion to sever, that the Commonwealth had never filed a Motion to consolidate?

13. Was Trial Counsel ineffective in basing her defense upon witnesses whose testimony was inadmissible, or at least in not requesting ruling on the proper evidence prior to the start of the defense's case?

Brief for Appellant at pages 6 and 7.⁴

Initially, Newman asserts that the trial court erred in not dismissing the case due to the Commonwealth's alleged violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Rule 1100 provides in pertinent part:

Rule 1100. Prompt Trial

... (a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed ...

(d) In determining the period for commencement of trial, there shall be excluded therefrom:

(1) the period of time between the filing of the written complaint and the defendant's arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; ...

Pa.R.Crim.P. 1100(a)(2) & (d)(1).⁵ The Commonwealth has the burden of proving by a preponderance of the evidence that due diligence was employed by the Commonwealth in attempting to apprehend Newman. Commonwealth v. Cruz, 362 Pa.Super. 282, 524 A.2d 507 (1987); Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). In determining whether the police acted with due diligence, a balancing process must be employed where the court, using a common sense approach, examines the activities of the police and balances this against the interest of the accused in receiving a fair trial. Cruz, 362 Pa.Super. at 285, 524 A.2d 507 (citations omitted). We have held that, where the Commonwealth exercises due diligence in attempting to locate a defendant prior to arrest, the period of elapsed time between the date of the filing of the complaint and the date of the arrest is excludable pursuant to Rule 1100(d)(1). See Commonwealth v. Bomboy, 357 Pa.Super. 265, 515 A.2d 969 (1986); Commonwealth v. Mansberry, 356 Pa.Super. 413, 514 A.2d 926 (1986); Commonwealth v. Fisher, 334 Pa.Super. 449, 483 A.2d 537 (1984). Further, when this court is reviewing the trial court's ruling "that the Commonwealth has met its burden, we shall consider only the evidence presented by the Commonwealth and so much evidence as presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted." Mitchell, 472 Pa. at 564, 372 A.2d 826 (citations omitted).

Here, Newman alleges that the Commonwealth did not exercise due diligence in attempting to track him down and arrest him. We disagree. The criminal incident in question occurred 1 August 1986. Officer James Hughes interviewed the complainants the next day, and he showed the complainants a photographic array on the third day after the incident. Hughes obtained an arrest warrant for Newman on 6 August 1986. The address on the warrant listed Newman's residence as Syracuse, New York, based upon information received by Hughes from Mrs. Major. A few days later, Hughes learned from Newman's mother that Newman had recently telephoned her from New York. Sometime before 20 August 1988, Hughes placed Newman's name through PCIC⁶ and NCIC⁷ and determined that Newman had absconded while on probation. Hughes maintained periodic contact with Newman's mother and father and he remained in constant contact with the Majors. A criminal history check revealed that there was an outstanding bench warrant for Newman in New York City. Police officers were provided with photographs of Newman and "wanted" posters that depicted his likeness. In November, Hughes was in contact with the Philadelphia District Attorney's Office to determine whether that office was willing to begin extradition proceedings to retrieve Newman. Finally, on 14 April 1987, Hughes received information from the New York City Police Department that Newman had been arrested there, and extradition proceedings, ultimately successful, were instituted. After a thorough review of the laudable efforts of Officer Hughes to locate and arrest Newman, we find that the Commonwealth did act with due diligence in bringing Newman to trial. Accordingly, the trial court did not abuse its discretion in excluding the pre-arrest time from the Rule 1100 run date.

Second, Newman claims that the trial court erred in prohibiting the testimony of a psychiatrist offered, at trial, to prove "that he examined the defendant [and] that the defendant believed that what he was saying was true." Notes of Testimony, 21 January 1988, page 116.⁸ An offer of proof must be sufficient to alert the trial judge to the purpose for which the evidence is being offered, and a trial court's exclusion of evidence must be evaluated on appeal by a review of the contents of the offer at the time it was made. Commonwealth v. Gibson, 264 Pa.Super. 548, 400 A.2d 221 (1979); Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977). The party specifying the purpose for which the testimony is admissible cannot argue on appeal that the evidence was admissible for a purpose other than that offered at trial. Gibson, 264 Pa.Super. at 551, 400 A.2d 221; see Commonwealth v. Gordon, 364 Pa.Super. 521, 528 A.2d 631 (1987). Appellant is deemed to have waived any grounds, other than those offered at trial, for the admission of the evidence at trial. See Commonwealth v....