Com. v. Steele

• Decision Date: 14 November 1991
• Citation: 408 Pa.Super. 128,596 A.2d 225
• Parties: COMMONWEALTH of Pennsylvania v. Robert E. STEELE, Appellant.
• Court: Pennsylvania Superior Court

Page 225

596 A.2d 225

408 Pa.Super. 128

COMMONWEALTH of Pennsylvania v. Robert E. STEELE, Appellant.

Superior Court of Pennsylvania.

Argued April 10, 1991.

Filed Sept. 4, 1991.

Reargument Denied Nov. 14, 1991.

Paul D. Boas, Pittsburgh, for appellant.

Patrick Kiniry, Johnstown, for appellee.

Before WIEAND, DEL SOLE and HOFFMAN, JJ.

HOFFMAN, Judge:

This appeal is from the judgment of sentence for receiving stolen property ¹ (2 counts), criminal conspiracy ² (3 counts), removal or falsification of a vehicle identification number ³ (2 counts), and dealing in vehicles with removed or falsified numbers ⁴ (2 counts). Appellant contends that the trial court erred in (1) denying his pre-trial motion to dismiss criminal informations based on a violation of an existing immunity order; and (2) admitting evidence of his involvement in other crimes. Appellant also contends that trial counsel was ineffective for failing to; (3) object to the Commonwealth's failure to allege an overt act in the three conspiracy counts; and (4) seek dismissal of one count of receiving stolen property. For the reasons that follow, we affirm.

Appellant was arrested on December 10, 1986 and charged with, inter alia, receiving stolen property, conspiracy, removal or falsification of a vehicle identification number and dealing in vehicles with removed or falsified numbers. These charges were brought in connection with the theft of a Ford pick-up truck and a Buick. On December 4, 1987, appellant filed a motion to dismiss the criminal informations filed against him based on an alleged violation of an existing immunity order. ⁵ The trial court entered an order dismissing appellant's motion on April 7, 1988. A jury trial was held in this matter on November 21 and 22, 1988. On November 22, the jury found appellant guilty of two counts of receiving stolen property, three counts of conspiracy, two counts of removal or falsification of a vehicle identification number and two counts of dealing in vehicles with removed or falsified numbers. Post-trial motions were timely filed and denied, and on February 13, 1990, appellant was sentenced to an aggregate term of three-to-eleven years imprisonment. This timely appeal followed.

Appellant first contends that the trial court erred in denying his pre-trial motion to dismiss the criminal informations filed against him. Specifically, he argues that those informations were based on information that was subject to an immunity order issued by the Allegheny County Court of Common Pleas. After careful review of the record and the parties' briefs, we agree with the trial court that the informations were proper because they were based entirely upon evidence derived independently of the immunized testimony. See Commonwealth v. Webster, 323 Pa.Super. 164, 170, 470 A.2d 532, 535 (1983) (use immunity does not prohibit prosecution for all crimes arising out of transaction testified to so long as prosecution's evidence is obtained from source wholly independent of compelled testimony). Moreover, the trial court has adequately addressed and properly disposed of appellant's contention in its Opinion. Accordingly, we conclude that the trial court did not err in denying appellant's pre-trial motion to dismiss the informations filed against him.

Appellant next contends that the trial court erred in admitting evidence of appellant's involvement in a prior car theft because this evidence was irrelevant. Alternatively, appellant claims that, even if this evidence was relevant, its probative value was outweighed by its prejudicial effect.

It is established that evidence of a defendant's other criminal activity is inadmissible as evidence of his guilt at his trial on other charges. Commonwealth v. Sparks, 342 Pa.Super. 202, 205, 492 A.2d 720, 722 (1985) (citations omitted). Evidence of other crimes may be admissible, however, when it is offered to prove motive, intent, absence of mistake or accident, common scheme or plan, or the identity of the person charged with the crime. Commonwealth v. Martinez, 301 Pa.Super. 121, 125, 447 A.2d 272, 273-74 (1982) (citations omitted). Even if the evidence does fall within an exception to the rule prohibiting proof of prior criminal activity, the trial court must still balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Shealey, 324 Pa.Super. 56, 60, 471 A.2d 459, 461 (1984).

At trial, the Commonwealth introduced a transcript of a conversation it taped between appellant and Joseph Cooper on August 6, 1986. The participants referred to a newspaper article indicating that appellant had been arrested in Allegheny County and charged with the theft of a Cadillac. See N.T. November 21, 1988, at 76-87. During this conversation, appellant stated that there was an article written about him in that day's newspaper. See Commonwealth's Exhibit 5, at 3-5. The Commonwealth introduced a redacted version of that article for the purpose of establishing that appellant was a participant in the conversation of August 6. See Commonwealth's Exhibit 6; see also N.T. November 21, 1988, at 87-94. Appellant objected to the admission of the tape and the article as being prejudicial evidence of other crimes from which the jury could infer that appellant had committed a prior offense similar to the one he was on trial for. Id. at 66-73. The Commonwealth countered by arguing that the evidence at issue was admissible because it was necessary to establish the identity of the caller as appellant herein. Id. at 66. Appellant's identity was important to the Commonwealth's case because other portions of the same conversation implicated him in the crimes in this case. Before the jury was permitted to hear this evidence, the trial court instructed the jury as follows:

* * * * * *

Secondly, this particular tape, in it is going to make reference to another or different vehicle than the Buick that has been testified to and some incidences [sic] connected with that other vehicle, a Cadillac as a matter of fact.

The purpose of the introduction of this tape and the sound of it is not to imply or infer guilt to this defendant by reference to this other vehicle or the facts connected with it.

In other words, testimony relative to other criminal episodes is not ordinarily admissible at all to show a defendant's guilt in the crime with which he is charged, as an example, in this trial.

So this transcript, and more particularly the tape, is not introduced to infer from it that this defendant is guilty of this crime by virtue of the references made to the other vehicle and the incidences [sic] connected with it. I want to make that perfectly clear to you. The purpose that the Commonwealth introduces this tape is to show the identity of the defendant by way of the voice and a newspaper clipping reference in it which will be later introduced by the Commonwealth, and it will tie into what they're trying to do.

So bottom line, rely on what you hear from the tape and not the transcript. It's simply an aid. And number two, any references to any other criminal episode are of no relevance to you in this case. They cannot be used to establish the guilt of this defendant in this case. That is clearly improper. And thirdly, this tape is intended to establish the identity of the defendant.

N.T. November 21, 1988, at 75-76. Furthermore, before the admission of the redacted version of the newspaper article about appellant, the trial court again cautioned the jury to use that evidence for the limited purpose of establishing appellant's identity. Id. at 94.

It is undisputed that both the tape and the newspaper article tended to establish appellant's identity. This evidence corroborated testimony of Trooper Wessel in which he identified the voice on the tape as that of appellant. Thus, this evidence was clearly relevant to prove identity.

Appellant claims that even if this evidence was relevant, its probative value was outweighed by its prejudicial effect. In this regard, appellant claims that his identity was not in issue and, therefore, the probative value of this evidence was outweighed by its prejudicial effect. In light of the importance of the evidence in the context of this trial, as well as the limiting instructions given by the trial judge, we cannot say that the probative value of the disputed evidence was outweighed by its prejudicial effect. Accordingly, we conclude that the trial court did not abuse its discretion in admitting this evidence at trial.

Appellant next raises two ineffectiveness claims. Our standard for reviewing ineffectiveness claims is well-settled: to prevail, the petitioner must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests, and that counsel's conduct prejudiced him. See, e.g., Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989); Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975 (1987). With this standard in mind, we will address appellant's underlying claims.

Appellant's first contention is that counsel was ineffective for failing to object to the Commonwealth's failure to allege an overt act in the conspiracy counts and for failing to raise this error in post-trial motions. Pa.R.Crim.P. 225(b)(5) provides that, to be legally sufficient, an information must contain "a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint." Id. Here, the conspiracy informations provided that:

[Appellant] with the intent of promoting or facilitating the commission of the crime of Removal or Falsification of Identification Number, [did] agree with Joseph Cooper, Wilbur James Roles, Sr., Robert Roles and Robert Miller, [ ] that they or one or more of them would engage in conduct, to wit: willfully remove or falsify the...