Commonwealth v. Johnston

• Decision Date: 20 October 1978
• Citation: Commonwealth v. Johnston, 258 Pa.Super. 429, 392 A.2d 869 (Pa. Super. Ct. 1978)
• Parties: COMMONWEALTH of Pennsylvania v. Michael JOHNSTON, Appellant.
• Court: Pennsylvania Superior Court

392 A.2d 869

258 Pa.Super. 429

COMMONWEALTH of Pennsylvania v. Michael JOHNSTON, Appellant.

Superior Court of Pennsylvania.

October 20, 1978

Submitted Sept. 12, 1977.

Marilyn C. Zilli, Asst. Public Defender Harrisburg, for appellant.

Marion E. MacIntyre, Second Asst. Dist. Atty Harrisburg, for Commonwealth, appellee.

Before WATKINS, President Judge and JACOBS, HOFFMAN, CERCONE, PRICE VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge:

The appellant, Michael Johnston, was convicted, after a jury trial, of charges of aggravated assault, robbery and conspiracy. In the instant direct appeal ^[1] to our Court, he raises several allegations of error.

He first contends that the evidence was insufficient as a matter of law to sustain the convictions. In reviewing such a claim, we must determine whether, accepting as true all of the evidence, regardless of whether it is direct or circumstantial, upon which, if believed, the fact-finder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. Commonwealth v. Reeves, 237 Pa.Super. 443, 352 A.2d 167 (1975).

When considered in light of the foregoing, the record shows that on the afternoon of December 30, 1974, an undercover narcotics agent of the Pennsylvania Bureau of Drug Control Frank Brinser, was driving around Harrisburg, with the objective of trying to purchase controlled substances. He was accompanied by a police informant named George Waters. As they passed the Three Lucky Dots Bar, Waters observed the appellant, Michael Johnston, standing in front of the bar. Waters was acquainted with the appellant and knew him to be capable of supplying drugs. Brinser stopped the vehicle and Waters asked Johnston to approach the vehicle for conversation. Waters inquired about drugs and the appellant stated that heroin was available. Johnston then went inside the bar, ostensibly to determine the quantity available. Brinser moved the vehicle to a parking spot across the street from the bar. After a short time, the appellant came out of the bar and joined Brinser and Waters in their vehicle. He informed the officer and informant that he would be able to arrange their purchase of a specified amount of heroin. During this conversation, the appellant pointed out another individual, standing on the sidewalk approximately twenty to thirty yards from the vehicle, as the person from whom the actual drug purchase was to be made. That individual was later identified as one Jeffrey Clark. Johnston caught Clark's attention to attract him to the vehicle, but Clark shook his head in a negative manner and then walked into the bar. The appellant then exited the vehicle, followed Clark into the bar, and a short time later returned to announce that the purchase would have to be made inside the bar, and that Brinser could join him in the bar.

Brinser approached the bar with the appellant. While walking, Brinser stopped, removed some currency from his sock, counted out $150.00 for the drug purchase, and placed the remainder of his money back in his sock. One Howard Cobb was approaching the bar from the other side of the street and he entered the bar after Brinser and the appellant.

Once inside the bar, the appellant and Brinser joined Jeffrey Clark in the bathroom. The appellant was still holding the door partially opened and Brinser noticed Cobb lurking just outside the door. Nobody said anything about the drug purchase and Brinser asked Johnston who Cobb was. Johnston simply said, "Watch for that dude." The door was partly opened at that point and Cobb came in while the appellant started to "slide out" of the doorway. Cobb immediately approached the agent, pushed him and demanded the money. Johnston was still standing outside the partially opened bathroom door and Clark was still in the bathroom. Brinser refused to give up his money and said he was going to deal through the appellant. At this point Cobb suddenly attacked Brinser, punching him savagely in the face several times, while demanding the money. Brinser bent over to shield himself and held out the $150.00, which either Cobb or the appellant took. After a pause of a couple of seconds, Cobb again demanded money. Brinser saw the appellant and another man now inside the bathroom, effectively blocking the door. Cobb continued to demand money while raining more blows upon the officer. During this time, one of the individuals by the door, either Johnston or the other person, said, "You better give him all the money or we will kill you." The officer, fearing for his life, pulled out a hidden pistol and fired two shots towards Cobb, hitting him twice. After the shooting, Brinser quickly fled the bar. The officer eventually had to undergo treatment by a plastic surgeon as a result of the facial wounds he suffered in the attack.

Based upon the evidence recited above, we believe there is ample evidence to sustain the appellant's conviction. The evidence in the case leads to the strong conclusion that Johnston was part of a conspiracy with Clark to sell drugs to the agent, and further, a participant with Cobb in the efforts to rob Brinser, by use of force, in the bathroom where appellant led him. Appellant's conduct in setting up the drug transaction cannot be seriously questioned. While the evidence did not indicate that appellant personally attacked or robbed the agent along with Cobb, we find it particularly noteworthy that the appellant was not only identified by Brinser as one of those by the door to the bathroom when the attack occurred, but also that he stood inside the bathroom, blocking the doorway with another person, when one of them said, "you better give him all of the money or we will kill you." On the record as a whole, the evidence was sufficient to support the determinations of guilt by the jury as to appellant's complicity in a conspiracy to sell drugs and participation in a plan which resulted in the robbery of and aggravated assault upon Frank Brinser. ^[2]

The appellant next contends that certain remarks by the prosecutor constituted such error as to entitle the appellant to a new trial. The first comment was made in the prosecutor's opening address to the jury, which was not transcribed. However, the record shows the following colloquy, at the time:

DEFENSE COUNSEL: Your Honor, may I interrupt and object?

THE COURT: You have objected.

DEFENSE COUNSEL: Yes, I would like to say (the prosecuting attorney) in this case has said this case deals with heroin and with the state's effort, continuing effort to subdue the use of heroin and what have you and I think that statement is inherently prejudicial to the defendant.

THE COURT: Your objection is noted, sir. You have an exception. I think it is fair comment keeping in mind you are in an opening address. (the prosecuting attorney) and (sic) I assume you are going to make it very brief.

The second comment challenged was in the prosecutor's closing argument to the jury. This argument began at 3:25 P.M., and ended at about 4:00 P.M. During the argument, the following appears in the record:

DEFENSE COUNSEL: Your Honor, I am going to have to object to that. The (prosecuting attorney) said

THE COURT: We note your objection. You have an exception. Carry on.

DEFENSE COUNSEL: I have no record though.

THE COURT: We will put it on after.

At the conclusion of the prosecutor's argument, the court recessed the trial and dismissed the jury. After the jurors departed, the court permitted counsel to raise the objection previously noted:

THE COURT You want to put something on the record, (defense counsel) concerning the closing address of (the prosecuting attorney)?

DEFENSE COUNSEL: Yes, I do, Your Honor. I believe (the prosecuting attorney) stated in his closing remarks that "you heard defense witnesses, they were at the Lucky Dots, what were they doing up there. Everybody knows that is the knub (sic) of narcotics in the Harrisburg area" and I submit that wasn't in evidence to begin with and highly inflammatory.

THE COURT: Before you go on, I will state my recollection which is different than yours. First of all, (the prosecuting attorney) spoke to the jury for thirty-five minutes which was less time in minutes than either you spoke or (other defense counsel). I mean individually, not jointly, and in that thirty-five minutes of remarks he dwelled on the subject of narcotics no more than in my judgment fifteen seconds and what he said a (sic) I recall it, the closing addresses were not transcribed, there was no request they be transcribed. My recollection is that (the prosecuting attorney) said to the jury in substance that based upon the testimony as to persons who were frequently going to the Three Lucky Dots Bar that the jury could or might conclude that it is a hub of narcotics activity in the City of Harrisburg. I think that was his statement. It might have been a touch beyond the evidence although I think it is reasonably inferred from the evidence that people of known reputation for dealing in narcotics frequent (sic) the Three Lucky Dots bar at the time of this occurrence. (the prosecuting attorney), do you want to add anything to the record?

THE PROSECUTING ATTORNEY: Yes. It was my recollection that Detective Sergeant Ulrich testified that not in the exact words I used concerning the hub of narcotics activity, but he did say it was the center of traffic in my recollection, the Three Lucky Dots was the center of traffic and that is what I was referring to.

THE COURT: Your objection is on the record.

DEFENSE COUNSEL: I would like to say I did make a notation of it at the time it was said and the only thing that I find that would be prejudicial about it is painting the defense...