Commonwealth v. Watkins
| Decision Date | 29 March 1976 |
| Citation | 361 A.2d 656,239 Pa.Super. 144 |
| Parties | COMMONWEALTH of Pennsylvania v. Winifred WATKINS, Appellant. |
| Court | Pennsylvania Superior Court |
John P. Dohanich, Asst. Public Defender Ambridge, for appellant.
Joseph M. Stanichak, Asst. Dist. Atty., Aliquippa, for appellee.
Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
This appeal arises from appellant's conviction after a jury trial of two counts of forgery and two counts of theft by deception. In her appeal appellant argues that she is entitled to a new trial because: (1) the proof at trial did not conform to the allegations in the indictment; (2) inadmissible hearsay evidence was used to explain inconsistencies in the identification testimony proffered by the Commonwealth; and (3) the in-court identification was tainted by an illegal out-of-court confrontation between appellant and the Commonwealth's witnesses. We find no reversible error with respect to these claims, and we will affirm the judgments of sentence. The facts are as follows:
On March 11 1974, two black females, posing as Joan Bennett and Jeannie Moffatt, cashed a total of four stolen and forged payroll checks at two branch offices of Mellon Bank in Beaver County. The two bank tellers who handled the transactions did so with appropriate circumspection. Although the drawee bank was not Mellon Bank, both 'Joan Bennett' (subsequently identified as appellant herein) and Jeannie Moffatt (subsequently identified as appellant's sister), alleged to have accounts with Mellon Bank, and supplied account numbers and driver's licenses in the names of their aliases as identification. In each case the checks were made out for less than two hundred dollars, obviating the policy of Mellon Bank to have management approval of checks for larger sums. Since both tellers were mildly suspicious and did not hurry the transactions, they both had from five to ten minutes to observe the women. That opportunity proved useful at all stages of the proceedings below, since the bank tellers, Mary Ann Woods and Bonnie Kowalchuck, recalled and were able to identify and describe with precision the stature, attire, demeanor and hair color of appellant and her sister. As the evidence at trial demonstrated, appellant and her sister forged checks on many occasions in Allegheny County, for which offenses both were convicted in state and federal courts. Indeed appellant's sister, who pleaded guilty to the instant offenses, testified that it was not uncommon for them to spend an entire day visiting various banks and cashing stolen and forged checks using these same aliases. [1] Appellant contended at trial that prior to March 11, 1974, her sister and she had a serious argument and were not speaking to each other, let alone doing their banking together. Appellant's sister testified that she and another girl, whose name she could not remember, cashed the checks in the instant case, and that appellant was not with her. Appellant also testified and admitted her involvement in a continuing scheme of forgeries with her sister using the names Joan Bennett and Jeannie Moffatt. Obviously, despite the exculpatory evidence, the circumstantial evidence of this on-going forgery scheme, and the solid, unshakeable testimony of Mrs. Woods and Mrs. Kowalchuck identifying appellant, amply supported the jury's verdicts of guilty.
Appellant first argues that the lower court erred in permitting the Commonwealth to amend, at trial, the alias to which the indictment referred in setting forth the facts of the instant forgeries. Apparently, at the preliminary hearing when the real names of the culprits were initially disclosed to Mrs. Woods and Mrs. Kowalchuck, the witnesses confused the aliases that appellant and her sister had used, so that appellant's indictment erroneously charged her with posing as Jeannie Moffatt. [2] At the suppression hearing and again at trial, however, both ladies unequivocally identified appellant, who was much stouter than her sister, as having used the Bennett alias. The witnesses were certain of this because 'Joan Bennett' was the one with whom both ladies principally conversed during the transactions. On the strength of this sure testimony, and finding no prejudice, the trial court permitted amendment of the indictment.
Pennsylvania, like most jurisdictions, has a statute which governs when an indictment may be amended at trial. [3] The portion of the act upon which appellant relies, by negative implication, provides that, 'it shall and may be lawful for the court before whom the trial shall be had, if it shall consider such variance (between the proof at trial and the allegations in the indictment) not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense upon such merits, to order such indictment to be amended, according to the proof . . ..' With respect to the question of when an indictment may be amended, our Supreme Court recently stated in Commonwealth v. Pope, 455 Pa. 384, 391, 317 A.2d 887, 890 (1974):
'It is well settled that a purported variance will not be deemed fatal unless it could mislead the defendant at trial, involves an element of surprise prejudicial to the defendant's efforts to prepare his defense, precludes the defendant from anticipating the prosecution's proof, or impairs a substantial right.' (Citations omitted.)
While the appellate courts of Pennsylvania have not previously treated the precise question here involved, in similar cases we have sustained the lower court's permitting the Commonwealth to amend the indictment. For example, in Commonwealth v. Lawton, 170 Pa.Super. 9, 84 A.2d 384 (1951), we sustained an amendment in a common law extortion case where the indictment misstated appellant's job title, even though proof that appellant was a public official was an element of the crime. In addition, on at least two occasions our lower courts have permitted amendments to correctly state the defendant's alias. See Commonwealth v. Wilson, 23 Pa.D. & C. 93 (Pa.C.P.1935); Commonwealth v. Denlinger, 16 Lanc.L.Rev. 27 (Pa.C.P.1898). Furthermore, numerous other jurisdictions permit amendments to correct aliases. See, e.g., Brookhart v. Haskins, 2 Ohio St.2d 36, 205 N.E.2d 911 (1965), rev'd on other grounds Sub nom. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Kellum v. State, 213 Miss. 579, 57 So.2d 316 (1952); Graves v. State, 148 Miss. 62, 114 So. 123 (1927). On the other hand, we have found no case in which such an amendment was deemed erroneous. Hence, the weight of authority demonstrates that the name of an alias is merely supplied in the indictment to facilitate pleading and, as such, is immaterial. Commonwealth v. Liebowitz, 143 Pa.Super. 75, 17 A.2d 719 (1941).
In addition, there is not the slightest hint that this amendment surprised appellant or prejudiced her defense. Commonwealth v. Pope, supra. At the suppression hearing attended by appellant's counsel, one month before appellant's trial, both bank tellers testified that appellant cashed the checks using the alias 'Joan Bennett,' not 'Jeannie Moffatt.' Hence, their testimony at trial, while at variance with the averment in the indictment, was consistent with the testimony which they had recently given at the suppression hearing. In any event, if the amendment would have had some affect on appellant's defense, a motion for a continuance would have been the appropriate remedy. Commonwealth v. Streets, 113 Pa.Super. 65, 172 A. 31 (1934).
Appellant next contends that her in-court identification by the bank tellers should not have been permitted because it was tainted by an illegal, extrajudicial confrontation. For a variety of...
To continue reading
Request your trial