Commonwealth v. Dill

420 A.2d 633, 278 Pa. Super. 462, 1980 Pa. Super. LEXIS 2682
CourtSuperior Court of Pennsylvania
DecidedJune 13, 1980
DocketNo. 919
StatusPublished

This text of 420 A.2d 633 (Commonwealth v. Dill) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dill, 420 A.2d 633, 278 Pa. Super. 462, 1980 Pa. Super. LEXIS 2682 (Pa. Ct. App. 1980).

Opinions

PER CURIAM:

On December 20, 1975, at approximately 10 a. m., Clarence Cobb, an employee of Tech Hi-Fi, located at 84th and Ogontz Avenue, in Philadelphia, was waiting on a customer in the store’s sound room when two strangers, later identified as the appellant, Alfred Dill, and Henry Walls, entered the store, pulled out guns, and announced a holdup. When they were informed another employee, Wade Warren, was in the store, Dill went to the restroom and ordered him, at gunpoint, to come out and join the others in the sound room. The two employees and the customer were then ordered to lie on the floor; their hands were tied and their mouths taped. Dill and Walls removed Warren’s watch and Cobb’s keys from their persons. Then, while Cobb and Warren watched, Dill and Walls began to remove stereo equipment from the storeroom and display room and place it into a U-Haul van parked in front of the store. During this time, another customer entered the store and was tied up. After Dill and Walls loaded the van, they locked the store door and left. Warren gained his release immediately and went to the store’s front window. He saw Dill and Walls driving away in a U-Haul van with a white license plate. He then called the police.

At approximately 11 a. m. on the same day, Officers Joyce and Garvin stopped a U-Haul van with a white license plate as a result of a police radio broadcast. The officers removed [467]*467Dill and Walls from that van. A large amount of money was found on Dill’s person, and a gun was discovered as a result of a frisk of Walls’ person. Another gun was found inside the van along with many pieces of stereo equipment. Dill and Walls were taken back to the Tech Hi-Fi store where they were identified by Warren and Cobb.

In a joint non-jury trial with Walls, Dill was convicted of two counts of robbery, one count of possession of an instrument of crime-generally, one count of possession of an instrument of crime-weapon and one count of conspiracy. Post-verdict motions were denied, and sentences were imposed. Dill failed to file a timely appeal but later, in post-conviction relief proceedings, he was permitted to file an appeal “nunc pro tunc.”

Dill asserts five assignments of error. He first claims the court erred in denying a demurrer to the charges of possession of an instrument of crime-generally and possession of an instrument of crime-weapon because the Commonwealth failed to present evidence of operability of the weapon in question. This issue is improperly framed because Dill did not rest following the adverse ruling but instead chose to put in a defense.1 Nonetheless, we will consider the claim as challenging the sufficiency of the evidence to support the conviction of these offenses.2

The Commonwealth argues that the specific issue advanced, i. e. failure to establish operability, was not properly preserved for review because it was not raised in written post-verdict motions. However, sufficiency of the evidence was raised in post-verdict motions; therefore, the issue is properly before us.

Since no evidence of operability was presented at trial, the precise issue is whether operability must be proven to sustain convictions under 18 Pa.C.S.A. § 907. Dill was convicted under two subsections, (a) and (b), of this statute. Subsection (a) states that a person commits a misdemeanor [468]*468of the first degree “if he possesses any instrument of crime with intent to employ it criminally.” “Instrument of crime” is defined in subsection (c) as, inter alia, “anything commonly used for criminal purposes.” Clearly a firearm would fit into this category without regard to its operability. Similarly, subsection (b) states a person commits a misdemeanor of the first degree “if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.” Subsection (c) defines a weapon to include a firearm which is not operable. Therefore, we conclude a showing of operability was not necessary to sustain the charges.

Next, Dill complains the court erred in failing to declare a mistrial when the assistant district attorney began to cross-examine Dill’s co-defendant, Walls, with a post-arrest statement made by Walls which had been suppressed pretrial. In this context, Dill argues the prosecution is guilty of misconduct which deprived him of a fair trial. The record reveals this occurred during the cross-examination of Walls:

“Q. Do you remember talking to the police after you got arrested?
A. Talking to them? I remember talking to them.
Q. Do you remember giving them a statement?
A. No, sir.
Q. You don’t remember saying to the police the morning I found out that the Tech opened at 10 o’clock?
Mr. Schuman: Objection, Your Honor.
The Court: Sustained.
Mr. Schuman: I respectfully move for a mistrial.
The Court: Motion denied.”

The issue of the prejudicial effect of this statement with regard to Walls, who was jointly tried with Dill, was decided in Commonwealth v. Henry Walls, 261 Pa.Super. 321, 326-27, 396 A.2d 419, 421-422 (1978). In that case, Spaeth, J., reasoned:

“Here we may assume that the prosecutor’s allusion to the suppressed statement was a breach of his duty. Never[469]*469theless, it was not necessary to declare a mistrial, for as we have already discussed, the trial judge did not learn enough about the statement to result in appellant being deprived of a fair trial.”

Since no prejudice resulted to Dill’s co-defendant, a fortiori, no prejudice resulted to Dill.

Dill’s third complaint is that the trial court erred in denying a pretrial motion to suppress the evidence of Warren’s and Cobb’s, in- and out-of-court identifications. Dill and Walls came face — to—face with the witnesses at the start of the robbery. Their faces were uncovered, and the witnesses observed them throughout the entire commission of the crimes or for approximately thirty minutes. Dill and Walls then left the scene. Thereafter, within fifteen minutes, they were apprehended, returned to the scene, and identified. At trial, both Warren and Cobb identified Dill and recounted the on-the-scene identification.

Dill now claims the on-the-scene identification was unnecessarily suggestive and the evidence of that identification should have been suppressed. He also argues that, because of this, the subsequent in-court identifications were tainted.

However, this issue has not been preserved for our review since it was not asserted in the post-verdict motions. Pa.R. Crim.P. 1123; Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

Alternatively, Dill claims, if this issue was waived, then his trial counsel was ineffective for failing to pursue it.3 This ineffectiveness claim must be examined in accordance with the principles of Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). First, we must determine whether the waived claim is of arguable merit.

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Bluebook (online)
420 A.2d 633, 278 Pa. Super. 462, 1980 Pa. Super. LEXIS 2682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dill-pasuperct-1980.