Commonwealth v. Dombrauskas
| Decision Date | 18 January 1980 |
| Citation | 418 A.2d 493,274 Pa.Super. 452 |
| Parties | COMMONWEALTH of Pennsylvania v. Richard F. DOMBRAUSKAS, Appellant. |
| Court | Pennsylvania Superior Court |
Argued March 19, 1979. [Copyrighted Material Omitted]
Andrew F. Schneider, Asst. Public Defender Doylestown, for appellant.
Kenneth G. Biehn, Dist. Atty., submitted a brief on behalf of the Commonwealth, appellee.
Before VAN der VOORT, HESTER and WIEAND, JJ. [*]
Appellant Richard F. Dombrauskas, was tried by a jury on counts of robbery, theft, simple assault, recklessly endangering another person and possession of an instrument of crime. He was found guilty of theft and acquitted of all other charges. Following the denial of post-trial motions, appellant was placed on probation for a period of twenty-three months and directed to pay $250.00 in lieu of fine. On appeal, he alleges six trial errors. None of these have merit, and, therefore, we affirm.
Mark Kozak, Michael Donohue, Timothy Rudolph and appellant were engaged in a "friendly" all night poker game at Michael Donohue's apartment. At or about 6:00 A.M., appellant, who had been losing consistently, accused Kozak, who had been winning, of cheating. An argument ensued which erupted into a physical scuffle between appellant and Kozak. Appellant quickly gained the upper hand, took money from Kozak, and released him. Kozak fled the apartment and, later that same day, reported the incident to the police.
Each of the four persons present gave varying accounts of the incident. The victim, Kozak, testified that appellant had attacked him with a knife, had taken all his money, and had warned him not to go to the police. Donohue agreed that appellant had been the aggressor but did not see who originally produced the knife.
Appellant testified that Kozak had attacked him with a knife but that he had been able to disarm and overpower him. While he stood over the supine Kozak, appellant stated that he had thrown the knife in the corner and then had asked for the money of which he had wrongfully been cheated. When Kozak offered him his wallet, appellant testified he took only $30.00.
Rudolph corroborated appellant's testimony that Kozak had been the aggressor. Although he did not actually see the knife in Kozak's hand, Rudolph testified that he had observed Kozak reach for his pocket as if "going for something". This incident had precipitated the fight. Rudolph also testified that appellant had taken money from Kozak but did not know how much.
Appellant's first allegation of error is that the trial court prohibited appellant from impeaching the victim's credibility by cross-examining him about a prior adjudication of delinquency for armed robbery. The trial court correctly ruled that a witness in a criminal trial may not be impeached by use of a prior adjudication of delinquency. The Juvenile Act of December 6, 1972, P.L. 1464, No. 333, § 27(b), 11 P.S. § 50-324(b); [1] Commonwealth v. Pilosky, 239 Pa.Super. 233, 239, 362 A.2d 253, 256-57 (1976). See also: Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973). Moreover, appellant testified, over objection, concerning the victim's involvement in the robbery for the purpose of establishing appellant's defense of self-defense.
Appellant next challenges four portions of the trial judge's charge to the jury. The first exception pertains to the emphasized portion of the following passage:
Now, there are a number of crimes tried here. Obviously, they all arise out of the same incident and they are, however, separate and distinct crimes. The law does not permit punishment one on top of another, I should say, in a situation like this but it is for you the jury to determine whether or not any of these crimes were committed by this defendant. (N.T. 167) (emphasis added).
This isolated statement is not, as appellant argues, a specific reference to punishment which requires a new trial. See, e. g.: Commonwealth v. Switzer, 134 Pa. 383, 19 A. 681 (1890). Throughout the charge, the trial judge emphasized that the jury's duty was to determine the factual issues of the case and that the jury was not to be concerned with possible punishment. Appellant's argument that the foregoing portion of the charge was prejudicial error, therefore, is without merit. Compare: Commonwealth v. Cavalier, 284 Pa. 311, 131 A. 229 (1925).
Secondly, appellant contends that the trial judge committed reversible error by commenting during the instructions on credibility that had the defense not elicited testimony of appellant's prior conviction on direct examination, the Commonwealth could have introduced it in another fashion. This comment, appellant argues, impaired his trial strategy because it implied to the jury that this tactic was a trick by the defense. The trial judge's comment, although a correct statement, was unnecessary. The remark was made in passing, however, and was not of such a nature as to deprive appellant of a fair and impartial trial. It does not warrant the granting of a new trial. See: Commonwealth v. England, 474 Pa. 1, 16-17, 375 A.2d 1292, 1300 (1977); Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973).
Appellant next contends that error occurred when the trial court refused to instruct the jury that appellant could not be guilty of theft if he believed that he had a right to retake money taken from him by cheating in a game of cards. The issue raised by this requested point has not previously been decided by the appellate courts of this State.
The Crimes Code defines theft by unlawful taking as follows: "A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." 18 Pa.C.S. § 3921(a). To be guilty of theft under this definition, the actor's intention or conscious object must be to take unlawfully the property of another for the purpose of depriving the other of his or her property. 18 Pa.C.S. § 302(b)(1) (ii); Commonwealth v. Pickett, 244 Pa.Super. 433, 368 A.2d 799 (1976). [2]
Although there is authority to the contrary, [3] the modern and better reasoned rule is that a claim of right defense is not available to one who employs force or stealth to recoup money lost in a gambling game or to collect an unliquidated debt. See: State v. Russell, 217 Kan. 481, 536 P.2d 1392 (1975); Cates v. State, 21 Md.App. 363, 320 A.2d 75, 77 A.L.R.3d 1353, cert. denied, 272 Md. 739 (1974); State v. Ortiz, 124 N.J.Super. 189, 305 A.2d 800 (1973); People v. Richardson, 55 App.Div.2d 514, 389 N.Y.S.2d 14 (1976). Disputed claims of this type are better resolved in a court of law than by violence or stealth.
In State v. Ortiz, supra, 124 N.J.Super. at 190, 305 A.2d at 801, the Superior Court of New Jersey concluded that the view expressed in some earlier decisions by the courts of other states [4] that a claim of right to property is sufficient to negate felonious intent in such cases was "little more than a relic of days long past". That Court said:
Id. at 192, 305 A.2d at 802. Similarly, in Cates v. State, supra at 373, 320 A.2d at 81, the Maryland Court of Special Appeals, faced with a similar situation quoted with approval from the dissenting opinion in People v. Butler, 65 Cal.2d 569, 55 Cal.Rptr. 511, 421 P.2d 703 (1967), as follows:
"Thus, the question is ultimately one of basic public policy, which unequivocally dictates that the proper forum for resolving debt disputes is a court of law, pursuant to legal progress not the street, at the business end of a lethal weapon."
This is also consistent with the view espoused by former Chief Justice Bell in Commonwealth v. English, 446 Pa. 161, 163-4, 279 A.2d 4, 5 (1971), where he wrote ". . . it would be folly to permit a person who has an adequate remedy at law to take the law into his own hands and attempt to recover his property or his property claims by force or violence or by any other violation of the law". That decision, however, involved a conviction for voluntary manslaughter resulting from a beating inflicted to recover a $10.00 debt and did not involve an attempt to recover a gambling debt. Moreover, four members of the Court expressed the opinion that under the circumstances of that case a claim of right would nevertheless negative the intent to steal required for larceny. To apply that view to the instant case, however, would be to achieve a result contrary to modern legal thought.
We hold, therefore, that the proper forum for resolving gambling disputes is a court of law pursuant to legal process. If one resorts to his own resources to take money physically from another in such instances, public policy precludes the assertion of a claim of right defense to a charge of theft by unlawful taking.
After the Commonwealth had rested its case, defense counsel requested the court to consider a motion, made pursuant to Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), to disallow the introduction of appellant's prior conviction to attack credibility if appellant testified. The court refused to consider the motion and ordered defense counsel to proceed. Appellant complains that the failure of the trial court to rule on the motion was reversible error.
In Commonwealth v. Moore, 246 Pa.Super. 163, 369 A.2d 862 (1977), we held that a trial judge's refusal to rule on a Bighum motion was equivalent to an...
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