Commonwealth v. Townsend

• Decision Date: 08 February 2000
• Citation: 747 A.2d 376
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Troy Armstrong TOWNSEND, Appellant.
• Court: Pennsylvania Superior Court

747 A.2d 376

COMMONWEALTH of Pennsylvania, Appellee, v. Troy Armstrong TOWNSEND, Appellant.

Superior Court of Pennsylvania.

Submitted July 12, 1999.

Filed February 8, 2000.

Joseph Caruso, Kittanning, for appellant.

Scott J. Andreassi, Dist. Atty., Kittanning, for the Com., appellee.

Before DEL SOLE, EAKIN and BECK, JJ.

EAKIN, J.

¶ 1 In the early morning of July 4, 1997, appellant forcibly entered the residence of Tiffany Townsend, his ex-wife, while she and her young daughter were asleep. He struck her in the head, either with his hand or a gun he held, then strangled her. While she escaped momentarily, appellant forced her back inside, then beat and kicked her in the head and arms, and threatened to kill her. When he finally left, he took her high school ring and some photographs.

¶ 2 Trooper Mickey Bowser arrested and interviewed appellant. He testified at trial to incriminating statements appellant made, which had been reduced to writing and signed by appellant. Appellant testified he drove to Ms. Townsend's home, but walked away after seeing his daughter through a window; the next thing he remembered was calling Ms. Townsend the following afternoon. He testified he did not contest the victim's testimony about what he had done.

¶ 3 Appellant was convicted of aggravated assault, burglary, simple assault, recklessly endangering another person, criminal mischief, unlawful restraint and theft by unlawful taking; he was sentenced to sixty to one hundred twenty months incarceration for aggravated assault, thirty to sixty months consecutively for burglary, and four to twenty-four months for unlawful restraint, concurrent to his other sentences.¹ Appellant's post sentence motions were denied February 22, 1999. This appeal followed.

¶ 4 Appellant first claims his sentence should be modified because the Commonwealth did not prove he "visibly possessed" a firearm during the crime. Appellant claims the evidence about holding the gun was equivocal, based in part on the following testimony provided by Ms. Townsend:

A: He had to go to the bathroom. I had a hold of her [Ms. Townsend's daughter] and tried to escape by that door and he got a hold of us and brought us back in and I was crouched, hunched by the bath tub and he kicked me there. He took her away from me and put her in my room and told me to get into the bath tub and he kicked me some more.

Q: Did he still have the weapon at that point?

A: It was either tucked into his pants or lying on my dresser.

N.T. Trial, 8/14/98, at 34.

¶ 5 42 Pa.C.S. Section 9712(a) requires a person convicted of a crime of violence be given a minimum sentence of at least five years, if the person visibly possessed a firearm that placed the victim in reasonable fear of death or serious bodily injury during the offense. Section 9712 applies when possession "manifests itself in the process of the crime." Commonwealth v. Healey, 343 Pa.Super. 323, 325-26, 494 A.2d 869, 870 (1985) (mandatory minimum sentence applied even where defendant fired a shotgun through a closed door because use of the firearm produced a visible effect). "Visible possession" means the gun was seen by or had a visible effect on the victim. Healey, at 870. A person can visibly possess a hidden firearm, when "it is the firearm, which has facilitated the offense." Commonwealth v. Wooten, 519 Pa. 45, 53-55, 545 A.2d 876, 880 (1988). A preponderance of the evidence makes subsection (a) applicable. 42 Pa.C.S.§ 9712(b).

¶ 6 Ms. Townsend testified that when she first saw appellant, "[h]e had a small gun, which he had in his hands." N.T. Trial, at 27. He struck her in the head with either the gun or his hand. Regardless of whether Ms. Townsend was struck with the gun or the hand in which it was held, and regardless of whether the gun was later on the dresser or tucked in appellant's pants, the gun was present at the outset of the assault and remained in appellant's control or possession. Throughout her ordeal, Ms. Townsend was aware of the gun and was subjugated by appellant's possession and display of it. As the gun manifested itself throughout the assault, appellant visibly possessed the gun under Section 9712.

¶ 7 Appellant also claims he should not have received an enhanced minimum sentence under 204 Pa.Code Section 303.10(a)(1).² We have already concluded appellant was in visible possession of the gun, and need not address this claim further. Appellant's motion to modify sentence was properly denied.

¶ 8 This case also presents us with a knotty evidentiary issue. Appellant claims the trial court violated the best evidence rule when it allowed his confession to be read into evidence. Trooper Bowser conducted the interrogation that included the confession and the writing of it; he testified to its contents and read portions of it verbatim. Defense counsel objected, contending a proper foundation had not been laid and that the confession had not been admitted into evidence.³ The confession was clearly present, as the trooper read from it, but for unexplained reasons the written copy was not admitted into evidence and does not appear in the certified record.

¶ 9 "The `best evidence' rule, now established in Pa.R.E. 1002, limits the method of proving the terms of a writing to the presentation of the original writing, where the terms of the instrument are material to the issue at hand, unless the original is shown to be unavailable through no fault of the proponent." Commonwealth v. Lewis, 424 Pa.Super. 531, 533-35, 623 A.2d 355, 357 (1993)(citing McCormick, Evidence at 560 2d ed.1972). The rule applies to "the proof of the contents of documents when the contents of those documents are material to, rather than mere evidence of, the issues at bar." Lewis, supra, (quoting Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 78-80, 459 A.2d 417, 419 (1983),appeal denied, 524 Pa. 608, 569 A.2d 1367 (1989)). "Beyond that, the evidentiary ruling of the trial court allowing `secondary evidence' should not be reversed except for a grave abuse of discretion...." Commonwealth v. Byers, 320 Pa.Super. 223, 229-31, 467 A.2d 9, 13 (1983)(quoting Ledford v. Pittsburgh and Lake Erie R.R. Co., 236 Pa.Super. 65, 74-75, 345 A.2d 218, 224 (1975)).

¶ 10 The learned trial court and both parties stated the best evidence rule was applicable and was violated because the contents of the confession are material to the issue of appellant's guilt or innocence. We must disagree. The rule is not implicated just because evidence is relevant; the rule applies where the writing itself is necessary to that which must be proved. "The best evidence rule is controlling only if the terms of a writing must be proved to make a case or provide a defense." Warren v. Mosites Construction Co., 253 Pa.Super. 395, 402, 385 A.2d 397, 400 (1978); see also Commonwealth v. Harris, 719 A.2d 1049, 1051 (Pa.Super.1998). While the contents of appellant's confession makes compelling evidence for the Commonwealth's case, the Commonwealth did not need to prove those contents in order to establish the elements of its case. The contents were not an element of the crime; they were part of the evidence the Commonwealth chose to present to prove appellant did what was alleged in the charging documents.

¶ 11 This is not a contract, the terms of which are determinative of the rights or obligations of the parties. There is no element of a writing in the proofs the Commonwealth was obliged to present. The statement was a relevant part of the evidence, but it is not a necessary part of the proof. It was not necessary for conviction. If the crime were forgery, or a written threat, the terms of a writing may be necessary proof, but the crimes here are burglary and assault. The prosecution had to show entry and the causing of the requisite bodily injury with the requisite intent; it did not have to prove a confession or any other writing.

¶ 12 In Commonwealth v. Smith, 374 Pa. 220, 97 A.2d 25 (1953), a police officer was present when Smith made a written confession. Over defense objection, the officer referred to a page that was not written in his presence. Smith claimed a best evidence rule violation, but the Supreme Court held the claim failed because the officer's response did not constitute testimony as to the content of the confession. In so doing, the Court did not hold that the rule applied, as has been suggested. It held that if the contents of the writing were not introduced, the rule could not be violated even if it were applicable.Id., at 34. However, the Court did not hold the rule applicable.

¶ 13 Commonwealth v. Lewis supra, reaffirms the rule's applicability if the contents of the writing must be proved to make a case. In that case, the rule was extended to a videotape, which recorded a defendant shoplifting; the tape was later lost. At trial, two Commonwealth witnesses were called. One was a store employee, who testified to watching the shoplifting as it occurred; the other was a policeman called to the scene, who only watched the tape but testified to its contents. The latter's testimony was held subject to the rule, as the contents of the tape were the very acts of the accused, the direct depiction of that which occurred. However, the employee's testimony was not complained of—he had direct knowledge, and could not be rendered incapable of direct testimony simply because the things he saw were taped and the tape lost.

¶ 14 The same analysis applies here. Trooper Bowser was present and heard the confession. Can he be rendered incompetent to testify to what he saw and heard simply because the questions and answers were reduced to writing? The logic behind the rule says he cannot.

The rationale for the [best evidence] rule is readily apparent: in light of the added importance that the fact-finder may attach to the written word, it is better to have available the exact words of a writing, to prevent "the mistransmitting [of] critical facts which accompanies

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