Com. v. Thomas

• Decision Date: 19 April 1988
• Docket Number: No. 2881,2881
• Citation: 539 A.2d 829,372 Pa.Super. 349
• Parties: COMMONWEALTH of Pennsylvania v. Craig Steven THOMAS, Appellant. Phila. 1986.
• Court: Pennsylvania Superior Court

Page 829

539 A.2d 829

372 Pa.Super. 349

COMMONWEALTH of Pennsylvania v. Craig Steven THOMAS, Appellant.

No. 2881 Phila. 1986.

Superior Court of Pennsylvania.

Submitted Aug. 24, 1987.

Filed Feb. 24, 1988.

Reargument Denied April 19, 1988.

Eileen Courtney, Wayne, for appellant.

Ann A. Osborne, Asst. Dist. Atty., Radnor, for Com., appellee.

Before CIRILLO, President Judge, and WIEAND and WATKINS, JJ.

WIEAND, Judge:

Craig Steven Thomas was tried by jury and was found guilty of robbery ¹ and possession of an instrument of crime. ² Post-trial motions were denied, and Thomas was sentenced to serve a term of imprisonment for not less than six years nor more than twelve years. On direct appeal, ³ Thomas argues numerous issues which we will consider seriatim.

On June 20, 1985, while walking on Main Street in Trainer, Delaware County, Roberta Wilkerson was approached from behind by a black male who, at gunpoint, took her purse and a radio which she was carrying. She described the robber as a black male, slender, about 5' 7"' and wearing light clothes. She could not otherwise identify the robber. Lorraine and Amanda Voshelle witnessed the robbery and gave general descriptions of the robber. Although their descriptions generally matched Thomas's description, neither of them specifically identified Thomas as the robber. Paul Barnard, while driving on Main Street, observed a black male run in front of his car carrying a radio and pocketbook. Barnard saw the man jump into the passenger side of a car, which Barnard followed into a dead end street. There, as the vehicle retreated, Barnard was able to observe the man for a period of several seconds. Barnard also made notes of the description of the man, who was wearing a wide brimmed straw hat, a white shirt, and blue shorts. He returned to the scene approximately one hour later and there identified Thomas, who was then seated in the rear of a police vehicle. Barnard subsequently selected Thomas from a lineup and made a positive identification at trial.

In Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984), this Court said:

'Sufficiency of the evidence and weight of the evidence are discrete inquiries.... In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt....

A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion.... The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.'

Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1229-30 (1984); accord, Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799 (1983) (allocatur denied); see also Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982).

Id. at 124-125, 485 A.2d at 461-462.

The evidence in the instant case was clearly sufficient to sustain the verdict of the jury. Therefore, counsel was not ineffective for failing to submit a written motion for a directed verdict. Counsel is not required to perform a useless act or file a meritless motion. Commonwealth v. Albrecht 510 Pa. 603, 626, 511 A.2d 764, 776 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Commonwealth v. Stoyko, 504 Pa. 455, 472, 475 A.2d 714, 723 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984); Commonwealth v. Cope, 359 Pa.Super. 140, 144, 518 A.2d 819, 820 (1986). Similarly, counsel was not ineffective for failing to seek a new trial on the ground that the verdict was contrary to the weight of the evidence. Such an averment would also have been lacking in merit.

As a part of its case against appellant, the Commonwealth offered into evidence a gold pocket watch engraved with a locomotive which, at the time of the robbery, had been left behind with the victim. When appellant testified in his own behalf, he denied ownership and any knowledge of the watch. On rebuttal, the Commonwealth offered Officer James Magaw, who testified that on the day following the robbery appellant's parents had inquired regarding a pocket watch. The trial court initially sustained an objection to statements made by appellant's parents but allowed the witness to testify that following the parents' inquiry he went in search of a gold pocket watch with a railroad engine engraved upon it. Such a watch, he said, had been retrieved from the victim of the robbery. Subsequently, he testified that appellant's parents had told him that appellant was the owner of the watch.

More specifically, the following is what occurred during the direct examination of Magaw:

Q. Directing your attention to the day following the robbery in this case, or the incident in this case, which would be, I believe June 21st of this past year, 1985, did you become involved with the return of property to the families of Debra Jones and Craig Thomas?

A. Yes, I did.

Q. Did you come into contact with individuals identifying themselves as relatives and indeed parents of Craig Thomas?

A. Yes, I did.

Q. Did--were--were you in contact with them for the purpose of returning property?

A. Yes, I was.

Q. As a result of that--of any conversation with them, what, if anything, did you do?

* * *

A. I--after speaking with those individuals, I contacted Officer Griffin, who was the officer in charge of the case, I received from him a key to a--to a locker, which--that's where the evidence was held for the case. I then returned to the family of Debra Jones, a camera, I believe a coat, some cash, mostly--mostly personal effects, personal items. For Craig Thomas, there was a--a problem with a pocket watch. The family said that he had with him a pocket watch and that we had taken it ...

Appellant objected to this line of questioning on grounds that it was irrelevant and constituted hearsay evidence. The trial court sustained the objection in part and disallowed any testimony of the statements made by appellant's parents. However, the court allowed Magaw to testify to what he did in response to the information narrated by the parents.

Thus, Officer Magaw testified as follows:

Q. Officer Magaw, as a result of your contact with these individuals, did you search for anything?

A. Yes, I did.

Q. Where did you search?

A. I searched the evidence locker and the envelopes for a ...

Q. All right.

A. ... pocket watch.

Q. Specifically what were you looking for?

A. A gold pocket watch which was identified to me as one with a ...

* * *

* * *

MR. JOHNSON [Appellant's Attorney]:

Objection.

BY MR. GOLDSTEIN [the District Attorney]:

Q. What were you looking for specifically?

* * *

* * *

MR. JOHNSON:

Objection.

THE COURT:

Yes, just--just that he was looking for a pocket watch. Go ahead.

THE WITNESS:

Gold pocket watch.

THE COURT:

What did you do, offi--what did you do, officer?

THE WITNESS:

I--I looked in the evidence locker and--and envelopes for a gold pocket watch with an engine engraved ...

THE COURT:

All right. What else ...

THE WITNESS:

... a railroad engine engraved on the ...

MR. JOHNSON:

Objection ...

THE WITNESS:

... on the back of it.

Magaw testified further that he had found such a gold pocket watch in the possession of the victim. Appellant cross-examined Magaw regarding his written report and the fact that nothing therein had suggested who it was to whom the watch belonged. On redirect examination, the trial court permitted the Commonwealth to ask Officer Magaw: "Do you know whether or not it was represented to you that it was the Defendant's watch?" Magaw then answered: "Yes, as I said, I was advised by that lady back there that the watch belonged to the Defendant." This was the only evidence establishing a connection between appellant and the watch found at the scene of the robbery.

Appellant argues that the trial court committed reversible error by allowing the Commonwealth to prove his ownership of the watch by inadmissible hearsay evidence. We are constrained to agree.

In Commonwealth v. Whiting, 358 Pa.Super. 465, 517 A.2d 1327 (1986), this Court said that

[h]earsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Cassidy, 315 Pa.Superior Ct. 429, 433, 462 A.2d 270, 272 (1983).

When a statement is offered in evidence to prove the truth of a fact asserted therein, the speaker's credit and the circumstances of the utterance become basic to a proper evaluation of the statement. Therefore, the hearsay rule generally excludes such evidence unless the speaker is on hand to personally testify.

Commonwealth v. DiSilvio, 232 Pa.Superior Ct. 386, 391, 335 A.2d 785, 787-88 (1975). The rationale behind the rule extends to indirect as well as direct attempts to introduce out-of-court statements. Commonwealth v. Farris, 251 Pa.Superior Ct. 277, 282, 380 A.2d 486, 489 (1977). Thus, "[i]f the apparent purpose of offered testimony is to use an out-of-court statement to evidence the truth of facts stated therein, the hearsay objection cannot be obviated by eliciting the purport of the statements in indirect form." Id. at 282-83, 380 A.2d at 489 (quoting McCormick on Evidence § 249, at 593-94 (Cleary ed. 1972)).

Id. at 478-479, 517 A.2d at 1334. The issue of indirect hearsay was considered by this Court in Commonwealth v....