Com. v. Sparks

Decision Date10 May 1985
Citation342 Pa.Super. 202,492 A.2d 720
PartiesCOMMONWEALTH of Pennsylvania v. George Marshall SPARKS, Appellant.
CourtPennsylvania Superior Court

Michael J. Casale, Jr., Williamsport, for appellant.

Robert W. Ferrell, III, Asst. Dist. Atty., Williamsport, for Commonwealth, appellee.

Before CAVANAUGH, BECK and TAMILIA, JJ.

TAMILIA, Judge:

Appellant, George Marshall Sparks, was convicted in a jury trial of three counts of conspiracy and three counts of theft by receiving stolen property. 1 Appellant's motions in arrest of judgment and for a new trial were denied by the lower court. Sentence of one and one-half years to five years of imprisonment and concurrent sentences totalling six and one-half years to nineteen years of imprisonment were imposed. We affirm.

Appellant first contends that the lower court erred in not sustaining the demurrer to the evidence on the conspiracy charges. Because appellant did not rest following the adverse ruling of the lower court, but elected to present a defense, the correctness of the ruling on the demurrer is no longer an appealable issue. See, e.g., Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980) citing Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976) and Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65 (1959). Hence, we cannot address appellant's contention.

Appellant next contends that the lower court erred in permitting the Commonwealth's introduction of appellant's subsequent criminal activity. Specifically, appellant contends that it was error to admit testimony of the Commonwealth witness, Harry Swank. Swank testified that he had taken two chain saws to appellant's place of business approximately three months after the incidents for which appellant was on trial. Swank stated that he informed the appellant that the saws were stolen and asked appellant if he would buy them. Swank further testified that appellant stated that it was too early in the season, he didn't want the chain saws, he would take all the antiques that Swank could obtain, Swank should inform him of the direction from which the antiques had come and he, appellant, would get the antiques out of town in a day or so.

It is well-settled that evidence of a defendant's other criminal activity is inadmissible as evidence of his guilt at his trial on another charge. Commonwealth v. Kenny, 326 Pa.Super. 425, 474 A.2d 313 (1984); Commonwealth v. Shealey, 324 Pa.Super. 56, 471 A.2d 459 (1984); Commonwealth v. Barba, 314 Pa.Super. 210, 460 A.2d 1103 (1983); Commonwealth v. Martinez, 301 Pa.Super. 121, 447 A.2d 272 (1982). However, as exceptions to this rule, evidence of other crimes may be introduced to prove motive, intent, absence of mistake or accident, common scheme or plan, or identity. Commonwealth v. Shealey, supra; Commonwealth v. Barba, supra; Commonwealth v. Martinez, supra. When one of these exceptions applies, however, the trial court must balance the need for the other crimes evidence against the possible prejudice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Hawkins, 295 Pa.Super. 429, 441 A.2d 1308 (1982); Commonwealth v. Bond, 261 Pa.Super. 311, 396 A.2d 414 (1978). Nonetheless, " '[w]hen the evidence is relevant and important to one of these ... [exceptions], it is generally conceded that the prejudicial effect may be outweighed by the probative value.' " Commonwealth v. Hawkins, supra, 295 Pa.Super., at 438, 441 A.2d at 1312 quoting Commonwealth v. Peterson, 453 Pa. 187, 198, 307 A.2d 264, 269-70 (1973). See also, Commonwealth v. Clayton, --- Pa. ---, 483 A.2d 1345 (1984).

In the instant case, the Commonwealth was required to prove that appellant possessed stolen goods with knowledge that they were stolen or at least with a belief that they had probably been stolen. 18 Pa.C.S.A. § 3925; Commonwealth v. Barba, supra. Appellant's defense to the charge of theft by receiving stolen property was his lack of knowledge regarding the stolen character of the property he was receiving and innocent intent. Appellant had repeatedly testified that he was never told that the goods were stolen and denied knowledge of the stolen character of the goods.

[W]hen the crime charged involves the element of knowledge, intent, or the like, the state will often be permitted to show other crimes in rebuttal, after the issue has been sharpened by the defendant's giving evidence of accident or mistake, more readily than it would be as part of its case in chief at a time when the court may be in doubt that any real dispute will appear on the issue.

McCormick on Evidence, § 190 at 452 (Cleary Ed.1972) (emphasis added). See also Commonwealth v. Martinez, supra; Commonwealth v. Bond, supra; Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978). At the time the Commonwealth offered the Swank testimony, the issue of appellant's knowledge and intent had been sharpened by appellant's defense. Hence, the Commonwealth needed to introduce the evidence to rebut the assertion of lack of knowledge or intent. Compare, Commonwealth v. Martinez, supra (intent not an issue when Commonwealth introduced evidence of subsequent sale of heroin; hence, introduction of evidence not warranted).

Moreover, the Swank testimony was logically connected and related in time to the crimes for which appellant stood on trial in view of the similarities between the incidents. Appellant's motive, method of solicitation and course of conduct were similar to his pattern of receiving stolen goods. Further, the time span of approximately three months between the incidents does not render the Swank testimony inadmissible in view of the similarities between the incidents. See e.g., Commonwealth v. Clayton, --- Pa. ---, ---, ---, 483 A.2d 1345, ---, --- (1984). The fact that the solicitation of Swank occurred subsequently does not preclude introduction of the testimony. See e.g., Commonwealth v. Clayton, supra. The testimony lessened the probability that appellant's possession of stolen goods on the occasions charged was innocent. See generally, Commonwealth v. Lasch, 464 Pa. 573, 589, 347 A.2d 690, 698 (1975) (equally divided court); Commonwealth v. Barba, supra. For the above reasons, the lower court did not abuse its discretion in allowing the Swank testimony since the Commonwealth's need for the evidence outweighed the prejudicial effect to the appellant.

Appellant next contends that the lower court erred in refusing to instruct the jury that it could draw a negative inference from the fact that the Commonwealth failed to call two witnesses: William Gunsalles and Larry Achey. These two individuals were named by Commonwealth witness, Harry Swank, during the course of his testimony about appellant's subsequent criminal conduct.

The missing witness rule provides that a negative inference may be drawn from the failure of a party to call a particular witness who was in his control. Commonwealth v. Harley, 275 Pa.Super. 407, 413, 418 A.2d 1354, 1357 (1980); see also Commonwealth v. Owens, 315 Pa.Super. 400, 462 A.2d 255 (1983). There are, however, exceptions to the rule:

1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining the unbiased truth;

2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;

3. The uncalled witness is equally available to both parties;

4. There is a satisfactory explanation as to why the party failed to call such a witness;

5. The witness is not available or not within the control of the party against whom the negative inference is desired; and,

6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.

Id. See also Commonwealth v. Morris, 320 Pa.Super. 139, 466 A.2d 1356 (1983); Commonwealth v. Owens, supra; Commonwealth v. Nesbitt, 276 Pa.Super. 1, 419 A.2d 64 (1980). The record shows that Mr. Gunsalles was incarcerated and was available to the appellant if he had decided to call him. As such, Mr. Gunsalles was equally available to both parties. The record also shows that appellant did not request the instruction regarding Mr. Achey. Hence, appellant waived the right to challenge error in failing to give the instruction. Commonwealth v. King, 287 Pa.Super. 105, 429 A.2d 1121 (1981).

Appellant's final contention is that the lower court erred in submitting the "in the business of buying or selling stolen property" counts of the offenses of theft by receiving stolen property to the jury. See 18 Pa.C.S.A. § 3903(a). 2 We disagree. The essential, operative elements of theft by receiving stolen property, are set forth at 18 Pa.C.S.A. § 3925:

(a) Offense defined.--A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

The final issue presents several problems.

Under the grading section of the Crimes Code, Theft by Receiving Stolen Property, 18 Pa.C.S.A. § 3925, is graded according to seriousness as to value, as is all other theft, except that pursuant to 18 Pa.C.S.A. § 3903(a), it becomes a felony of the third degree "if the receiver is in the business of buying or selling stolen property." In considering the consequence of grading in retail theft, § 3929, Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981) held that evidence of prior conviction of shoplifting shall be introduced only at sentencing to determine the grade of the retail theft, § 3929(b). This is so, as proof of a prior conviction at trial would be seriously prejudicial to the defendant, and evidence of prior convictions could be determined at sentencing as a matter of law, without prejudice to the...

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