Commonwealth v. Bunch

• Decision Date: 25 May 1984
• Citation: 477 A.2d 1372,329 Pa.Super. 101
• Parties: COMMONWEALTH of Pennsylvania v. Daniel Valdez BUNCH, Appellant.
• Court: Pennsylvania Superior Court

477 A.2d 1372

329 Pa.Super. 101

COMMONWEALTH of Pennsylvania v. Daniel Valdez BUNCH, Appellant.

Superior Court of Pennsylvania.

May 25, 1984

Argued Dec. 13, 1983. [Copyrighted Material Omitted]

M. Douglas Eisler, Asst. Public Defender, West Chester, for appellant.

Stuart Suss, Asst. Dist. Atty., West Chester, for Commonwealth appellee.

Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.

SPAETH President Judge:

This is an appeal from judgment of sentence. Appellant was found guilty of robbery, aggravated assault, two counts of firearms violations, criminal attempt theft, and two counts of criminal conspiracy, and was sentenced to a total of six to twelve years imprisonment. We affirm.

The trial court accurately recited the pertinent facts as follows:

On Monday, July 11, 1977, at approximately 3:50 p.m., two (2) black males entered the insurance office of Mr. Leebert Logan located at 1204 Paoli Pike, West Goshen Township, Chester County, Pennsylvania. (N.T. 278-279). While one of the pair remained at the door, the other entered the office and inquired about his uncle. (N.T. 281). After being informed that Logan did not know who his uncle was, the two (2) men left the office. (N.T. 281).

At approximately 4:30 p.m., on the same day, two (2) black men entered the insurance office. (N.T 282). As one man waited in the outer office, the second man entered the inner office, identified himself as Mr. Johnson (N.T. 294) and inquired about automobile insurance coverage. (N.T. 291-292). After discussing insurance matters for approximately ten minutes, the two individuals left the office. (N.T. 295).

The men immediately re-entered the office. (N.T. 295). Johnson (later identified as Henry Bailey) forced Logan's secretary, Mrs. Ellen Pyle, to crawl underneath her desk. (N.T. 297, 350). The second man began hitting Mr. Logan over the head with a small revolver and yelling that he was going to kill him. (N.T. 295-297). Mr. Bailey kicked Logan and jumped on Logan as the second aggressor and Logan struggled over the gun. (N.T. 298).

Mr. Bailey ransacked Mr. Logan's desk and took a bank pouch containing two (2) Five Thousand ($5,000) Dollar checks from his desk. (N.T. 297, 304).

As the two (2) actors fled the premises, they were observed by Mr. Wilfredo Colon, who was entering the outer office. (N.T. 503). Mr. Colon gave a description of the two men and further stated that they were driven from the scene by a third black male in a 1967 brown Ford Ltd., with trim top, two-door hard top bearing a white Pennsylvania temporary tag license number 0588162. (N.T. 503-504).

Mr. Logan was taken to the hospital and received emergency medical attention requiring fifty-one (51) stitches in his face and scalp and the removal of two shattered teeth. (N.T. 505, 305).

The police were called and at approximately 5:00 p.m. of the same day, a description of the individuals and the vehicle was circulated by a general alarm message put out on the police radio. (N.T. 49).

At approximately 8:00 p.m. of the same evening, Pennsylvania State Trooper Glenn J. Flick observed a vehicle travelling south on Pa. Route 100, near the intersection of Pa. Route 113, matching the broadcast description of the vehicle. (N.T. 51). The trooper followed that vehicle south on Pa. Route 100 at a distance of five (5) car lengths with no intervening vehicles coming between his and the suspect vehicle. (N.T. 57).

The trooper observed four (4) black males in the vehicle. (N.T. 51-52). From his vantage point, the trooper could see movement within the back seat of the car, as if they were either putting or removing something from between their legs. (N.T. 53). The Trooper also saw these people turning around to look at the police car. (N.T. 61-62, 96). When the vehicle stopped at an ARCO station, Trooper Flick ordered the occupants from the car, searched and handcuffed the suspects and held them for an additional period of ten (10) minutes until Detective Stephen E. Boland, Jr., of the West Goshen Township Police arrived at the scene, at which time all four suspects were turned over to the custody of Detective Boland. (N.T. 54-55). Upon investigation by Detective Boland, it was determined that Mr. Al Gordon, one of the four suspects, was innocent of the Logan robbery so he was released. (N.T. 126-128). The remaining suspects, Mr. Henry Bailey, Mr. Danny Bunch [appellant], and Mr. John Sims were arrested and charged with robbery and other offenses in relation to the Logan robbery. (N.T. 129, 145).

Trial Court Op. at 1-3.

-1-

Appellant first argues that because several witnesses who testified at trial were unable to positively identify him as one of the participants in the robbery, there was insufficient evidence to support the convictions. However, Bailey, one of appellant's alleged co-conspirators, testified at trial and identified appellant as a participant in the robbery. This identification was unshaken and by itself was sufficient to support the convictions. See Commonwealth v. Willis, 276 Pa.Super. 13, 419 A.2d 70 (1980) (accomplice's identification testimony by itself sufficient to support conviction).

-2-

Appellant next argues that there was insufficient evidence to support the conviction for criminal attempt theft because there was no evidence that the actors in the crime ever exercised control over the bank pouch. After reviewing the briefs and the record, we find that the trial court's opinion adequately disposes of this argument.

-3-

Appellant next argues that the trial court abused its discretion in denying his motion in limine to be permitted to testify without subjecting himself to impeachment by his prior criminal convictions. We find that the trial court adequately considered and weighed the factors set forth in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), and did not abuse its discretion in denying the motion. In addition to the reasons cited by the trial court in its opinion, we note that the Commonwealth's case rested primarily on the testimony of Bailey. Therefore, if appellant had testified, the primary issue for the jury to resolve would have been one of credibility between Bailey and appellant. The defense had available and used various means in attempting to attack Bailey's credibility. See, e.g., N.T. 646-53 (Bailey had maintained his innocence at preliminary hearing and line-up); N.T. 658-61 (Bailey agreed to testify pursuant to a plea bargain providing for 10 to 36 months imprisonment). In this situation it was particularly important that the Commonwealth be permitted to attack appellant's credibility if he should testify, and the record does not reveal that it had other means available. Cf. Commonwealth v. Washington, 274 Pa.Super. 560, 418 A.2d 548 (1980) (no abuse of discretion in allowing impeachment; were two opposite versions of events and defendant's tactic was to attack prosecution's chief witness by accusations of criminal activity and fraudulent activity); Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980) (abuse of discretion in allowing impeachment; although credibility was significant issue, crimes were 8 and 10 years old and were for same crime as crime being prosecuted; Commonwealth had testimony of other witnesses); Commonwealth v. Herman, 271 Pa.Super. 145, 412 A.2d 617 (1979) (no abuse of discretion in allowing impeachment; Commonwealth's case was close and hinged on testimony of one witness whose testimony was contradicted; appellant had two alibi witnesses); Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1976) (no abuse of discretion in allowing impeachment; had defendant testified, sole issue would have been credibility between victim and defendant; defendant had witnesses to occurrences up until time of crime).

-4-

Appellant next argues that the trial court abused its discretion in denying his motion for severance after co-defendant Sims elected to testify against his attorney's advice. After reviewing the briefs and the record, we find that the trial court's opinion adequately disposes of this argument.

-5-

Appellant next argues that the trial court erred in refusing to strike testimony concerning Commonwealth Exhibits No. 31 and No. 32. Appellant's argument appears to be that once the trial court ruled, rightly or wrongly, that these exhibits were themselves not admissible, it was error for the court to refuse to strike testimony regarding them. Appellant does not argue that the testimony was irrelevant or otherwise inadmissible, but only that once the exhibits were ruled inadmissible, the court was required, without more, to strike testimony regarding them. This argument is without merit. There was no error unless the testimony was for some reason inadmissible, and appellant does not offer any reason.

[329 Pa.Super. 109] -6-

Appellant next argues that the trial court erred in denying his motion to suppress. In this regard appellant argues: (a) that one of the trial court's findings of fact is unsupported by the record; (b) that the trial court erred in admitting hearsay testimony at the suppression hearing; and (c) that the trial court erred in finding that appellant's arrest was based on probable cause.

-a-

Appellant argues that the trial court's finding that the radio transmission was based on information given the police by Pyle and Colon was wrong because the record shows that part of the information (age and weight) was supplied by Sharpless and not by Pyle or Colon. As noted by the trial court "Trooper Flick made the vehicle stop based on that portion of the radio message pertaining to the vehicle description (N.T. 52, 74), provided in detail by Mr. Colon. (N.T. 49-50)." Trial Court Op. at 5. ...