Com. v. Shotwell

• Decision Date: 01 September 1998
• Citation: 717 A.2d 1039
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Charles SHOTWELL, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 1039

717 A.2d 1039

COMMONWEALTH of Pennsylvania, Appellee, v. Charles SHOTWELL, Jr., Appellant.

Superior Court of Pennsylvania.

Argued June 3, 1998.

Filed Sept. 1, 1998.

Joseph M. Devecka, State College, for appellant.

Ann Targonski, Asst. Dist. Atty., Shamokin, for Com., appellee.

Before KELLY, J., and CERCONE, President Judge Emeritus, and MONTEMURO, ^* J.

KELLY, Judge.

Appellant, Charles Shotwell, Jr., asks us to determine whether the trial court erred when it admitted "course of conduct" testimony at trial; when it denied appellant's motion for a mistrial based on alleged references to appellant's post-arrest silence; and, when it imposed an order of restitution despite the outcome of appellant's personal bankruptcy proceedings. We hold that the trial court properly admitted the testimony of Detective Hodge regarding his investigation. We also hold that the prosecutor's questions did not violate appellant's constitutional right to remain silent. Finally, we hold that appellant's sentence of restitution is not void as a result of his personal bankruptcy proceedings. Accordingly, we affirm appellant's judgment of sentence.

The relevant facts and procedural history are as follows. In December of 1995, appellant represented himself as a licensed securities broker to Donna Gurba. Appellant knew Ms. Gurba because he previously had agreed to install a furnace for her in her home. Appellant told Ms. Gurba that he was the president of a company named Shore Associates Inv., Inc., which invested in various commodities. Appellant convinced her that she could significantly increase her money with little risk by investing it with him. Between December 1, 1995 and January 26, 1996, Ms. Gurba wrote checks to appellant totaling over $71,000.00, which appellant promised to repay. Ms. Gurba was to receive weekly interest on her investment and the return of the balance of her money, once the investment period ended. Appellant wrote seven checks to Ms. Gurba as "security" for the money she had invested with him. Meanwhile, appellant filed a personal bankruptcy petition on January 5, 1996, allegedly listing Ms. Gurba as an unsecured debt in dispute in the amount of $75,000.00.

When Ms. Gurba attempted to cash appellant's checks on January 26, 1996, the bank refused the checks because appellant's accounts did not have sufficient funds to cover any of the checks. Ms. Gurba also contacted appellant in an effort to reclaim her original investment. Appellant did not return Ms. Gurba's money and ceased to respond to her telephone messages. As a result, on February 1, 1996, Ms. Gurba contacted the Northumberland County District Attorney's Consumer Affairs Office regarding appellant's failure to return her money.

Following an investigation by the Northumberland County District Attorney's Office, Detective James Hodge filed a criminal complaint against appellant on May 7, 1996. The complaint charged appellant with six counts of theft by deception ¹, six counts of theft by failure to make required disposition of funds ², and three counts of securities violations ³. On May 13, 1996, appellant was arrested and, on September 5, 1996, he was arraigned before the district magistrate.

On March 18, 1997, a jury trial commenced before the Honorable Barry F. Feudale, President Judge, presiding. At trial, appellant's counsel objected to testimony provided by Detective Hodge, the investigating officer, as a long hearsay narrative prohibited by established Pennsylvania law. In addition, appellant's counsel also objected to questions by the Commonwealth, and testimony by Detective Hodge, which allegedly referred to appellant's post-arrest silence. On March 19, 1997, the jury convicted appellant of six counts of theft by deception, six counts of theft by failure to make required disposition of funds, and one count of violating the Securities Act. Appellant filed post-trial motions seeking a new trial and modification of his sentence. The trial court denied these motions. Appellant timely filed this appeal.

Appellant raises the following issues in this appeal:

I. DID THE TRIAL COURT ERR IN NOT SUSTAINING AN OBJECTION TO THE HEARSAY NARRATIVE OF

COUNTY DETECTIVE JAMES HODGE, REQUIRING A NEW TRIAL?

II. DID THE TRIAL COURT ERR IN NOT GRANTING A MISTRIAL AFTER REPEATED QUESTIONS PATIENTLY [sic] DESIGNED TO REFER TO CHARLES SHOTWELL'S POST ARREST SILENCE, REQUIRING A NEW TRIAL?

III. DID THE PREVIOUS PERSONAL BANKRUPTCY OF CHARLES SHOTWELL DISCHARGE THE DEBT OF DONNA GURBA, MAKING HIS ARREST ON OR AFTER MAY 7, 1996 AN EFFORT BY DONNA GURBA TO AVOID THE CONSEQUENCES OF THE PERSONAL BANKRUPTCY, REQUIRING MODIFICATION OF SENTENCE TO OMIT RESTITUTION TO DONNA GURBA?

(Appellant's Brief at 3).

Our standard for reviewing the trial court's denial of a motion for new trial is whether the trial court abused its discretion. Commonwealth v. Rodriguez, 451 Pa.Super. 474, 482, 679 A.2d 1320, 1325 (1996), appeal denied, 549 Pa. 715, 701 A.2d 577 (1997). See also Commonwealth v. Pirela, 398 Pa.Super. 76, 580 A.2d 848 (1990), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991). "Unless there are facts and inferences of record that disclose a palpable abuse of discretion, the trial judge's reasoning should govern." Commonwealth v. Betz, 444 Pa.Super. 607, 616, 664 A.2d 600, 604 (1995), appeal denied, 544 Pa. 600, 674 A.2d 1065 (1996)(citing Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994)).

In his first issue, appellant argues that the trial court erred when it denied his motion for a new trial based on an objectionable, long hearsay narrative by Detective Hodge. Appellant asserts that the narrative was unduly prejudicial as it included statements of a highly incriminating nature which were likely understood by the jury as proof of appellant's guilt. We disagree.

The admission or exclusion of evidence is a matter for the sound discretion of the trial judge. Commonwealth v. Stringer, 451 Pa.Super. 180, 185, 678 A.2d 1200, 1202 (1996), appeal denied, 546 Pa. 679, 686 A.2d 1310 (1996). Absent an abuse of discretion such a ruling will not be disturbed. Id. See also Commonwealth v. Glover, 399 Pa.Super. 610, 582 A.2d 1111 (1990).

The established definition of hearsay is an out of court statement offered to prove the truth of the matter asserted. Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa.Super.1997)(citing Commonwealth v. Collazo, 440 Pa.Super. 13, 654 A.2d 1174 (1995)). Certain out-of-court statements offered to explain a course of conduct are admissible as an exception to the hearsay rule as these statements are not offered for the truth of the matters asserted; they are offered to show information upon which the police acted. Id.

Well-settled Pennsylvania law states that an appellant must specify where within the certified record the challenged testimony appears. Commonwealth v. Gray, 415 Pa.Super. 77, 98, 608 A.2d 534, 544 (1992) (citing Pa.R.A.P. 2119(c)). Otherwise, the issue is waived. Id. In the instant case, appellant presents a short, general statement that the testimony of Detective Hodge was a long hearsay narrative subject to exclusion under Commonwealth v. Palsa, supra. Appellant then cites to two specific instances in the record, which he finds objectionable. Accordingly, we will examine those specific references to the trial testimony. See Commonwealth v. Gray, supra.

At trial, Detective Hodge testified that, as part of the investigation, Mrs. Deromedi, the Director of the Consumer Affairs Office, sent a certified letter to appellant. Detective Hodge explained that he was personally familiar with the actions taken by the Consumer Affairs Office in this case and specifically with respect to appellant. Detective Hodge did not testify regarding the content of the letter. Instead, the actions of Mrs. Deromedi were referenced only in general terms as a limited part of the overall investigation of the victim's complaint. Thus, the testimony regarding the sending of the certified letter was not excludable under Commonwealth v. Palsa, supra.

At trial, Detective Hodge also testified that, during his investigation, he had managed to obtain a copy of a lease agreement between Shore Associated Investments, Inc. and a person named Kevin Knouse. Appellant did not object to this particular testimony at trial. Therefore, the issue has not been properly preserved for appeal. See generally Commonwealth v. Pearson, 454 Pa.Super. 313, 319, 685 A.2d 551, 554 (1996), appeal denied, 549 Pa. 699, 700 A.2d 439 (1997).

Moreover, the testimony regarding the lease did not delve into the nature or details of the lease or include any statements allegedly made by Mr. Knouse. To the contrary, this testimony was also limited to and offered in the context of Detective Hodge's investigation of Ms. Gurba's complaint. Thus, the lease testimony was not excludable under Commonwealth v. Palsa, supra. Accordingly, appellant's first issue warrants no relief.

In his second issue, appellant argues that the trial court erred in refusing to grant a mistrial as a result of Detective Hodge's comment that appellant had not responded to the Detective's investigation. This comment, appellant claims, raised an inference that appellant had a duty to respond to the investigation. Therefore, any reference to appellant's failure to respond to the investigation was unduly prejudicial. Appellant also argues that the Commonwealth pursued a line of questions that could arguably raise an impermissible inference regarding appellant's post-arrest silence. ⁴ We disagree with each of these contentions.

"It is a clear violation of the accused's constitutional right against self-incrimination to make a reference at trial to his silence while in police custody." Commonwealth v. Pearson, supra (quoting Commonwealth v. Holloman, 424 Pa.Super. 73, 78, 621 A.2d 1046, 1048 (1993); Commonwealth v. Gbur, 327 Pa.Super. 18, 24, 474 A.2d 1151, 1154 (1984)). "Not every such reference,...