Commonwealth v. Fromal

Decision Date22 March 1990
Citation392 Pa.Super. 100,572 A.2d 711
PartiesCOMMONWEALTH of Pennsylvania v. Kenneth Joseph FROMAL, Appellant.
CourtPennsylvania Superior Court

Argued Jan. 25, 1990. [Copyrighted Material Omitted]

Vincent J. Quinn, Chief Public Defender Lancaster, for appellant.

John A. Kenneff, Asst. Dist. Atty., Millerville, for Com appellee.

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

CIRILLO President Judge:

Kenneth J. Fromal appeals from a judgment of sentence entered on May 30, 1989 in the Lancaster County Court of Common Pleas. Fromal was sentenced to a term of seven and one half to fifteen years for robbery. 18 Pa.C.S. § 3701(a)(1)(ii). We affirm.

Fromal was charged with robbery in connection with the theft of $18,994.00 from the Quarryville branch of the Bank of Lancaster County ("Bank") on November 20, 1987. Following the disposition of pre-trial motions and a suppression hearing, a jury trial commenced which resulted in a guilty verdict. Fromal's trial counsel filed post-verdict motions and supplemental post-verdict motions. Additionally, Fromal himself filed a lengthy letter with the trial court. Fromal's formal motions and those raised in his pro se letter were denied, and this timely appeal followed.

Fromal advances the following issues for our consideration: 1) whether the evidence was sufficient to prove his identity as the perpetrator of the crime, 2) whether the verdict of the jury was against the weight of the evidence when the Commonwealth's evidence establishing identity was based on surmise and conjecture, 3) whether the suppression court properly denied Fromal's motion to suppress his statements made to the police after his arrest, 4) whether the suppression court erred when it refused to suppress certain physical items seized from Fromal's vehicles pursuant to search warrants, 5) whether trial counsel was ineffective for: a) failing to object to the prosecutor's improper remarks during his closing argument concerning Fromal's right against self-incrimination, and his alleged intent to move to Florida, b) failing to object to the trial court's failure to instruct the jury as to the defense of alibi, c) failing to preserve for appellate review the issue of whether a mistrial was warranted because the Commonwealth failed to disclose certain exculpatory evidence to the defense, and d) failing to object to the admission of a handgun seized from Fromal's vehicle, and the records of Trump Castle concerning Fromal's gambling activities.

Fromal initially contends that the evidence was insufficient to support the jury verdict because the Commonwealth failed to prove beyond a reasonable doubt the identity of the robber.

Our standard of review when evaluating the sufficiency of the evidence is well settled:

[W]hether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.... The Commonwealth may sustain its burden by means of wholly circumstantial evidence.... Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered....

Commonwealth v. Hunter, 381 Pa.Super. 606, 610, 554 A.2d 550, 551 (1989) (quoting Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986)). Additionally, the circumstantial evidence need only produce a moral certainty beyond a reasonable doubt in order to sustain a conviction; it need not be absolutely incompatible with innocence. Commonwealth v. Feinberg, 211 Pa.Super. 100, 113, 234 A.2d 913, 919 (1967). The Commonwealth concedes that the evidence utilized to establish the identity of the robber is wholly circumstantial. The evidence, read in the light most favorable to the Commonwealth, is as follows:

During the afternoon of November 20, 1987, a masked gunman entered the Bank and announced his intention to rob it. He was masked so that only his eyes were visible and he was clothed such that only his hands were in sight. The robber then directed Jean Aukamp, the head teller of the Bank, to remove the money from the teller drawers and place it in a white plastic bag which had red printing on it. According to a Bank audit, $18,994.00 was taken in denominations of ones, fives, tens, twenties and fifties. Some of the bills were packaged with rubber bands while others were packaged with paper clips. The robber remained in the Bank for approximately five to ten minutes. Aukamp testified that she was certain she recognized the voice, but was unable to identify it until later, at approximately 2:00 a.m., when she concluded that the voice belonged to Fromal. Fromal had been a frequent customer of the Bank for two years prior to the robbery. During those visits, Aukamp had numerous opportunities to converse with Fromal.

Aukamp testified that she was ninety percent certain that the voice of the robber was that of Fromal. Further, Aukamp testified that the robber's hands were similar to Fromal's, and that the robber was between 5'3"' and 5'6"' tall with a build resembling that of Fromal. Another teller, Bonnie Kauffman, also testified that Fromal's height was similar to the robber's height.

Three eye witnesses testified that they observed the robber leaving the scene in a late model, four-door, maroon or burgundy automobile with a vinyl top. At the time of his arrest, Fromal was driving and owned a maroon Oldsmobile sedan. One of the witnesses to the robbery, Robert Hall, viewed a photograph of Fromal's vehicle taken by police and stated that it looked "exactly" like the one which he saw the robber driving.

Subsequent to Fromal's arrest, the police searched a van parked at Fromal's residence which contained a box with two toy handguns. Prior to trial, the police showed the toy handguns and two authentic handguns to Aukamp, who identified one of the toy handguns as similar to the one used in the robbery. Further, a search of the van also revealed a white plastic bag containing $5,000.00 in twenties and fifties. A search of Fromal's automobile disclosed $3,910.00 in fives, tens, twenties and fifties fastened with paper clips.

After Fromal was arrested and administered his Miranda warnings, he made certain statements to the police. Specifically, he told them that he was in Atlantic City, New Jersey on the date of the robbery gambling at two casinos, Resorts and Trump Castle. Fromal contended that he was at Trump Castle between 2:30 p.m. and 3:00 p.m. on the date of the robbery, and that he was playing at a one hundred dollar table. Apparently, the management of Trump Castle records the names of players at such tables. It should be noted that Fromal himself did not testify; this evidence was introduced through the testimony of the arresting officer, Trooper Raymond E. Solt.

The Commonwealth went to great lengths to refute Fromal's statement that he was in Atlantic City when the robbery occurred. Beth Quirk, a "casino analyst," employed by Trump Castle, explained that certain players in order to receive "comps" such as free rooms, desire to be "rated" by the casinos. When a person is rated, the casino records the gambling activities of that person, the time period during which the gambler played, the amount gambled, and the amount won and lost. Floor personnel initially compile such data, and then it is forwarded to Quirk's department where it is eventually recorded and stored in a computer. Although a rated player's activities are only recorded if that player affirmatively requests such recordation, a player who makes wagers of one hundred dollars or more automatically has his or her name recorded regardless of that player's wishes, unless the recording employee does not know the name of that player and that player does not provide it.

The above records indicated that Fromal gambled at Trump Castle on October 20, and 21, 1987, and on November 22, 1987, but not on November 20, 1987, the date of the robbery. Fromal indicated to police that the money in his possession was the proceeds from the recent sale of his home. The Commonwealth introduced evidence of Fromal's recent banking and gambling activities to disprove this contention. On October 19, 1987 Fromal's checking account had a balance of $173.13. Fromal had sold his home for $19,506.19, and on October 20, 1987, he made a deposit of $15,000.00 while taking the remaining $4,506.19 in cash. Fromal made an additional deposit of $3,623.00 between October 20, 1987 and November 20, 1987. Fromal withdrew $3,625.00 in cash and wrote checks to third parties totalling $15,190.00. On November 20, 1987, Fromal had a balance of $808.00 in his checking account. The casino records reflect that Fromal purchased $6,000.00 worth of betting chips, $3,000.00 of which he lost, for use on table games on November 22, 1987. Between October 20, 1987 and November 22, 1987, Fromal purchased additional gambling tokens in the amount of $9,100.00 for use in slot machines, $1,875.00 of which he lost.

The Commonwealth maintains that Fromal did not have sufficient "legitimate" funds capable of providing him with $6,000.00 on November 22, 1987 to purchase betting chips, and to still have $8,900.00 in his possession at the time of his arrest.

Fromal contends that the direct evidence of Aukamp's voice identification, coupled with the circumstantial evidence presented to bolster it, was insufficient to establish his identity beyond a reasonable doubt. We disagree. It is settled law that "[a] witness may testify to a person's identity from his voice alone." Commonwealth v. Woodbury, 329 Pa.Super. 34, 40, 477 A.2d 890, 893 (1984) citing Commonwealth v. Reid, 448 Pa. 288, 292...

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