Com. v. Whitner

• Decision Date: 14 October 1980
• Citation: 420 A.2d 486,278 Pa.Super. 175
• Parties: COMMONWEALTH of Pennsylvania v. Allen WHITNER, Appellant.
• Court: Pennsylvania Superior Court

Page 486

420 A.2d 486

278 Pa.Super. 175

COMMONWEALTH of Pennsylvania v. Allen WHITNER, Appellant.

Superior Court of Pennsylvania.

Argued March 20, 1979.

Filed April 25, 1980.

Reargument Denied July 7, 1980.

Petition for Allowance of Appeal Denied Oct. 14, 1980.

Harvey W. Robbins, Philadelphia, for appellant.

Andrew B. Cohn, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before VAN der VOORT, HESTER and WIEAND, ^* JJ.

VAN der VOORT, Judge:

Allen Whitner was tried before a jury and convicted of robbery, ¹ unauthorized use of an automobile, ² criminal conspiracy, ³ possession of instruments of crime, ⁴ unlawful restraint, ⁵ simple assault ⁶ and aggravated assault. ⁷ On this direct appeal, he makes several averments of error.

On February 17, 1977, at or about 1:00 A.M., Paul Kretovich was entering his parked car when two men approached the driver's side of his vehicle. One of the men, Vanders Richardson, pulled the door open and struck Kretovich several times on the head with a gun. A second man, Allen Whitner, entered the passenger's side so as to sandwich Kretovich between him and Richardson. Richardson passed the gun to Whitner and drove away in Kretovich's car. Kretovich was blindfolded, his wallet was taken, and he was ejected onto the sidewalk approximately three blocks from where he had been accosted. There he was found by a police officer, who took from him and immediately broadcast the descriptions of the vehicle and the occupants. Another officer heard the broadcast, sighted the vehicle and made an attempt to stop it. The occupants of the car, however, refused to stop and drove off at a high rate of speed. When the officer finally overtook the car, he found the occupants gone, the motor running and the doors open.

A subpoena, which had been issued to "Alan Whitman", was observed on the front seat of the vehicle. Police records disclosed that "Alan Whitman" was in fact Allen Whitner. Whitner was also identified by Kretovich from police photographs. A warrant was issued for Whitner's arrest and he was taken into custody. He thereupon gave an inculpatory statement in which he admitted participating in the assault and robbery of Kretovich.

This evidence was clearly sufficient to support the guilty verdicts returned by the jury. Appellant's motion in arrest of judgment, therefore, was properly denied.

The complaint against appellant was filed on February 18, 1977. The original run date, in the absence of exclusions, was August 17, 1977. Two periods, however, were excluded by the trial court. The first period of exclusion allowed by the court was attributable to appellant's unavailability from March 8, 1977 to April 19, 1977, because of hospitalization. Delay caused by appellant's hospitalization is properly excluded. Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977); Commonwealth v. Quinlan, 259 Pa.Super. 536, 393 A.2d 955 (1978); Commonwealth v. Haynes, 245 Pa.Super. 17, 369 A.2d 271 (1976).

An additional exclusion occurred because of a continuance granted at appellant's request from July 19, 1977 to August 29, 1977. This continuance, being for a period of forty-one days, resulted in an exclusion of eleven days. Pa.R.Crim.P. 1100(d)(2). The suppression hearing, which had been reserved until time of trial, commenced on August 26, 1977. It was concluded on October 5, 1977, and jury selection commenced immediately thereafter.

Trial, under these circumstances, commenced on August 26, 1977, the day on which the court started to take testimony on appellant's pre-trial suppression motion. Commonwealth v. Kluska, 484 Pa. 508, 399 A.2d 681 (1979); Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977). This was well within the time allowed by Rule 1100.

A pre-trial motion to suppress appellant's confession was denied by the court below, which rejected appellant's assertions of police brutality and found that his confession had been given voluntarily. Our duty on review is to determine whether the record supports the findings of the court below. We must also determine the legitimacy of the inferences and legal conclusions drawn from the evidence. Commonwealth v. Hunt, 263 Pa.Super. 504, 398 A.2d 690 (1979). In making these determinations we consider only the Commonwealth's evidence and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Hunt, supra. From a review of the record in the instant case, we conclude that the finding of the suppression court was supported by the evidence. The conflict in the evidence was for the factfinder. Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977); Commonwealth v. Washington, 259 Pa.Super. 407, 393 A.2d 891 (1978).

The record also supports the suppression court's conclusion that there was probable cause for appellant's arrest. Not only was the identifying subpoena found on the front seat of the vehicle from which he fled after the crime, but the victim positively identified appellant as one of the attackers from police photographs.

Appellant also contested the voluntariness of his confession during the jury trial. He complains that the trial court refused a point for charge to the effect that involuntary confessions are inherently untrustworthy. A trial court, however, is not required to affirm all requested instructions, even though the statement of law contained therein be correct. Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975). It is free to use its own form of expression so long as it adequately, accurately, and clearly explains the principle of law for the jury. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). In the instant case the trial judge clearly and unequivocally told the jury that if appellant's confession had been given involuntarily, no consideration could be given to it. The charge, considered in its entirety, was a correct statement of the law. Appellant was not prejudiced by the failure of the trial judge to charge in precisely the same words contained in the requested point for charge. See: Commonwealth v. Gray, 473 Pa. 424, 374 A.2d 1285 (1977); Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977).

Appellant also contends that his trial counsel ⁸ was ineffective for failing to investigate the background of Officer Cashman, one of the interrogating officers who, it is alleged, had been previously arrested for simple assault. ⁹ The fact of Cashman's arrest for assault was irrelevant to the inquiry in this case. Prior arrests which have not resulted in conviction, moreover, cannot be used to impeach a witness. Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977); Commonwealth v. Taylor, 475 Pa. 564, 381 A.2d 418 (1977); Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973). The appellate courts have stated repeatedly that counsel cannot be held ineffective for failing to pursue an issue which lacks merit. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Appellant's trial counsel, even if he had learned of the arrest, would not have been able to use it to impeach Officer Cashman or to show that he had abused appellant in order to obtain a confession. There is no basis for finding counsel ineffective.

Appellant also claims that due process was violated by the failure of the Commonwealth to turn over information concerning the arrest of Officer Cashman to appellant. This issue was not raised in post trial motions and, therefore, will not be considered on appeal. Commonwealth v. Twiggs, 485 Pa. 481, 402 A.2d 1374 (1979); Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979).

Appellant next argues that he was prejudiced by the introduction into evidence of the subpoena found on the front seat of the vehicle from which the suspects had fled. This evidence, he contends, disclosed to the jury that he was suspected of being involved in prior criminal activity. The Commonwealth's evidence established that the subpoena had not been in the car prior to the assault on Kretovich. Its presence after the assailants had fled in and subsequently abandoned the commandeered vehicle was highly probative of the identity of one of the men. As such, it was properly received. Evidence of prior criminal activity becomes admissible to show (1) motive; (2) intent; (3) absence of accident or mistake (4) a common plan, scheme or design; or (5) to establish identity of the person charged. Commonwealth v. Rose, 483 Pa. 382, 399-400, 396 A.2d 1221, 1230 (1979); Commonwealth v. Peterson, 453 Pa. 187, 197-98, 307 A.2d 264, 269 (1973). Moreover, the trial judge carefully admonished the jury when the evidence was received and again during final instructions concerning the limited purpose for which the evidence had been received. We perceive no error.

Appellant's final argument is that the lower court erred in its ruling (following an in camera hearing) that if appellant testified at trial, the Commonwealth could introduce evidence of appellant's prior convictions for theft, receiving stolen property, robbery, and burglary. Appellant desired to testify solely as to purported police brutality in the extraction of his confession.

In Commonwealth v. Butler, 405 Pa. 36, 46-47, 173 A.2d 468, 473-74 (1961), our Supreme Court stated:

It has been the law in Pennsylvania for decades that whenever a witness or a defendant takes the witness stand, his testimony may be impeached by showing prior convictions of felonies or misdemeanors in the nature of crimen falsi . . . .

This rule of evidence is founded on common sense and logic. If a defendant offers himself as a person worthy of belief, the jury has the right to know what kind of man he is to aid in assessing his credibility. His previous record is admissible for this purpose just the same as testimony of prior reputation for...