Commonwealth v. Dodge

599 A.2d 668, 410 Pa. Super. 189, 1991 Pa. Super. LEXIS 3459
CourtSuperior Court of Pennsylvania
DecidedNovember 4, 1991
Docket519
StatusPublished
Cited by16 cases

This text of 599 A.2d 668 (Commonwealth v. Dodge) 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. Dodge, 599 A.2d 668, 410 Pa. Super. 189, 1991 Pa. Super. LEXIS 3459 (Pa. Ct. App. 1991).

Opinions

OLSZEWSKI, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Bradford County on August 31, 1987. Appellant was found guilty following a jury trial on June 10, 1987 for the offense of receiving stolen property, a felony in the third degree. Appellant was sentenced to a term of incarceration, a minimum of three and one-half years and a maximum of seven years. On July 31, 1990, appellant’s post-conviction hearing act petition was dismissed and the court directed that appellant shall be enti[192]*192tied to pursue his appeal from the sentence nunc pro tunc. This appeal followed.

Appellant raises the following issues for our consideration:

A. Did the defendant’s trial counsel render ineffective assistance when he elicited testimony from a witness concerning the defendant’s prior criminal record? 1
B. Did the trial court err in admitting evidence relating to other crimes of which the defendant allegedly had knowledge, and was trial counsel ineffective in failing to file timely post-verdict motions preserving the court’s improper ruling for appellate review?
C. Did the trial court impose upon the defendant an illegal sentence of three and one-half to seven years for the crime of receiving stolen property?

Appellant’s brief at 3. As we find appellant’s issues to be devoid of merit, we affirm the lower court’s order in part and remand for resentencing not inconsistent with this decision.

Appellant alleges that trial counsel was ineffective and requests that we grant a new trial. Before trial counsel may be deemed ineffective, appellant must meet the three pronged test, as set forth in our Supreme Court’s decision of Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989):

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Com[193]*193monwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant alleges that trial counsel rendered ineffective assistance when counsel elicited testimony from a witness concerning appellant’s prior criminal record. Specifically, appellant complains of the following testimony elicited from Thomas Shaffer:

“I had taken it for granted that they were at a friend’s of his and he asked me if I would go with him get the guns due to the fact that he was on probation and was not allowed to bring any rifles down the street.” (N.T. vol. II at 45). Shaffer further testified: “And when he came out I asked him why he had the guns in this shed and he said I couldn’t come down Main Street with them because I am on probation ...” (N.T. vol. II at 47).

Appellant contends that trial counsel should have moved to strike the testimony or made a motion in limine to preclude the witness from testifying concerning appellant’s prior criminal record. Appellant has failed to produce evidence that trial counsel knew of this testimony before the trial and therefore counsel will not be deemed ineffective for failing to file a motion in limine to exclude the testimony.

Appellant contends that he was prejudiced by the witness’s remarks indicating he was on probation at the time of the incident and the fact of commission of one crime is not proof of the commission of another. The testimony of the witness was not offered to prove that appellant has a “criminal disposition,” it was offered to explain the reason why appellant did not want to carry the guns down the street. Trial counsel will not be deemed ineffective for failing to move to strike the testimony since appellant was not so prejudiced as to deprive him of a fair trial.

Appellant contends that the trial court erred in admitting evidence relating to other crimes of which appellant allegedly had knowledge. Specifically, appellant complains [194]*194about the following testimony elicited by the District Attorney from the arresting officer, Officer McLinko:

Q: And did he (the defendant) say something about Cornwall having other guns and ...
A: Yes.
Q: What was that?
A: That he had a whole car full of them.
Q: And then Mr. Dodge gave you some other information about other crimes?
A: Yes, I don’t remember which ... any specific ones. Q: Well, did you put them in your report?
A: I’ll have to look.
Q: Well, look through your report and see if you can refresh your recollection from that.
A: He told us where another pistol, an automatic, that a person had that was obtained from another person.
Q: Well, just read in the names, tell us what he told you?
A: He said that an Ike Stroke had a .22 Llama automatic.
BY MR. FLEURY:
Your Honor, I would object to this line of questioning. I think Mr. Barrett would certainly have to agree that Mr. Dodge may have furnished some helpful information to the police pertaining to other crimes, but has no material elements as to the case here. I just fail to see any relevance.
BY MR. BARRETT:
To the contrary, Your Honor, Mr. Dodge exhibited a great interest in telling ... a great interest in informing ... giving all sort of valuable, useful stuff so that he might be able to be of assistance to the police on, which would show his state of mind and his intent and what he was trying to do at the time.
BY MR. FLEURY:
Your Honor, unless they can show Mr. ... and again, Mr. Barrett certainly has to admit that he can’t show any [195]*195involvement by Mr. Dodge whatsoever, it’s immaterial to this case, it’s just a confusion of issues.
BY THE COURT:
Overrule the objection.
BY MR. BARRETT:
Q: If I may ask you a leading question. He told you ...
he tried to give you information about two or three other
crimes that other people were involved in?

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Bluebook (online)
599 A.2d 668, 410 Pa. Super. 189, 1991 Pa. Super. LEXIS 3459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dodge-pasuperct-1991.