Commonwealth v. Hentosh

554 A.2d 20, 520 Pa. 325, 1989 Pa. LEXIS 8
CourtSupreme Court of Pennsylvania
DecidedFebruary 3, 1989
Docket217 W.D. Allocatur Docket, 1985; 24 W.D. Appeal Docket, 1988
StatusPublished
Cited by59 cases

This text of 554 A.2d 20 (Commonwealth v. Hentosh) is published on Counsel Stack Legal Research, covering Supreme 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. Hentosh, 554 A.2d 20, 520 Pa. 325, 1989 Pa. LEXIS 8 (Pa. 1989).

Opinions

OPINION

McDERMOTT, Justice.

Appellee was convicted by a jury on charges of burglary,1 receiving stolen property,2 and criminal conspiracy,3 in the Court of Common Pleas of Mercer County on April 21,1982. He filed post-trial motions in which he alleged, inter alia, that he had been denied the effective assistance of counsel. On December 22, 1982, the court granted his motion for arrest of judgment on the conviction for receiving stolen property but denied his remaining claims. He was subse[329]*329quently sentenced to a term of eleven (11) to twenty-three (23) months confinement on the burglary conviction. He also received a suspended sentence on the conviction for criminal conspiracy.

Appellee then appealed to the Superior Court raising the issue of ineffective assistance of his trial counsel. That court, in a per curiam order, affirmed the trial court’s judgment of sentence. Commonwealth v. Hentosh, 341 Pa.Super. 615, 491 A.2d 918 (1985). Appellee then petitioned this court for allocatur. That petition was granted, and by per curiam order we reversed the order of the Superior Court and remanded the record to the trial court for a hearing on the ineffectiveness claim. Commonwealth v. Hentosh, 509 Pa. 158, 501 A.2d 247 (1985). Following the hearing on remand the trial court found merit in appellee’s ineffectiveness claim and granted him a new trial. On appeal the Superior Court affirmed the decision of the trial court. Commonwealth v. Hentosh, 371 Pa.Super. 643, 534 A.2d 130 (1987). The Commonwealth then petitioned for allowance of appeal. We granted this petition to examine whether appellee successfully demonstrated that the testimony of the missing witnesses on which he predicated his ineffectiveness claim would have been helpful to. his cause.

The underlying facts of this case are these. Appellee operated a business in Greenville in which he dealt in buying and selling gold and silver, among other things. On occasion Mr. Louis G. Milliron of Greenville, Mercer County, an employee of National Gas Company, made service calls to the business. During the service calls he saw a sign in appellee’s window stating that appellee was buying silver and gold. He engaged in conversations with appellee approximately four times prior to December 18, 1980, during which he told appellee of his coin collection. Mr. Milliron also told appellee that he had some silver he might sell. During the night of December 18,1980, Mr. Milliron’s home was burglarized. His coin collection and other items were stolen. The following day Mr. Milliron went to appellee’s place of business to tell him that he was offering a reward [330]*330for information on his missing collection. There he observed Frank Shannon and Clyde Devore talking with appellee in the process of selling him a coin or coins. At the time Mr. Milliron was not close enough to the exchange to observe the coins in the transaction. However, he did observe on Shannon’s wrist his watch which had been stolen in the burglary the night before. Mr. Milliron went across the street to the Greenville Police Department to inform them of his observations and then returned to the store. He announced that Shannon was wearing his watch. Shannon and Devore hastily took a check from appellee and left the store to be followed by Milliron who was soon joined by two policemen. The policemen took the two into custody after a brief pursuit. Shannon and Devore subsequently pled guilty to the Milliron burglary among others. Most of the items stolen from Milliron were recovered from Shannon and Devore. However, an 1881 Liberty ten-dollar gold piece was not recovered.

Shannon testified that on December 12, 1980, while in appellee’s store with Devore, appellee gave him Milliron’s name and told him the general area where he lived. He proposed that Shannon and Devore burglarized Milliron’s home for the specific purpose of stealing the coin collection, and that he would share in its value with them. Shannon stated that he and Devore had consummated several prior deals with appellee. As an example he testified that appellee had directed them to his store in Warren, Ohio, for the purpose of fencing stolen guns, and that following appellee’s directions they went there and sold them for $500.

On the night in question it was the burglars’ intent to steal the coin collection which appellee had told them was in Milliron’s home. Shannon testified that appellee in his post-burglary dealings with them did not want to be informed of the relationship between the items they sold him and specific burglaries. He did, however, want Shannon to let him know which articles were “hot” in order that he could melt them down quickly. Although appellee had instructed them to wait until things “cooled down” after the [331]*331Milliron burglary, Shannon testified that when they were observed by Milliron the next day they were in the process of selling a ten-dollar gold piece to appellee which was stolen at Milliron’s the night before.

The Commonwealth’s exhibits consisted of a check in the amount of $100 made out to “cash” signed by appellee and dated December 19, 1980, as well as a business card of appellee containing directions to, and the address of, appellee’s store in Warren, Ohio, with the figure $500 written thereon. These items were recovered from the burglars at the time of their arrest.

Appellee testified in his own defense that he had directed Shannon and Devore to his Ohio store, that they might dispose of guns, without knowing that they had been stolen in burglaries. He explained that he merely referred them to a third party who bought guns and watches and who frequented the Warren store. He testified that the coin he purchased from the burglars the day after the Milliron robbery was a 21/2 dollar gold piece, not the 10 dollar gold piece that Shannon testified he sold him. He testified that he was not aware that Shannon and Devore were burglars or that the items they sold him on the occasions of their visits were “hot”. He denied that he told the burglars of Milliron’s coin collection, and specifically denied the existence of an agreement with them to dispose of the items or share in the proceeds. He went on to testify that after Shannon and Devore were arrested Milliron returned to his store and he showed him a 2lh dollar gold piece. He asserted that he had no 10 dollar gold pieces in the store at that time. This last was on cross-examination. He was not given the opportunity to state either then or on redirect examination that Milliron at that time was accompanied by an officer or officers of the Greenville Police who were then present to hear Milliron state that the piece which appellee showed him was not from his collection. Consequently, no such averment was part of the trial record or considered by the jury. In addition, Lori Morford, who appellee identified as his bookkeeper/secretary, neither appeared nor testified [332]*332at trial, although appellee placed her in the store at the time of the events of December 19.

In a memorandum in support of appellee’s request for a new trial, submitted after the evidentiary hearing on remand, appellee specifically asserted:

Lori Morford’s testimony was critical to the defense of Jerre Hentosh’s case.

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Cite This Page — Counsel Stack

Bluebook (online)
554 A.2d 20, 520 Pa. 325, 1989 Pa. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-hentosh-pa-1989.