Commonwealth v. Kinsey

375 A.2d 727, 249 Pa. Super. 1, 1977 Pa. Super. LEXIS 2018

• Court: Superior Court of Pennsylvania
• Decided: June 29, 1977
• Docket: 1975
• Status: Published

Opinions

PRICE, Judge:

Appellant was found guilty by a judge sitting without a jury of criminal conspiracy¹ and receiving stolen property.² Three claims are presented in this appeal: (1) the evidence was insufficient to support a conviction of criminal conspiracy; (2) the evidence was insufficient to support a conviction of receiving stolen property; and (3) the trial court erred in denying appellant’s motion to suppress physical evidence.

First, we hold that because the contentions raised in this appeal were also made in oral motions, on the record, at the conclusion of trial, they were properly preserved for our review under Pa.R.Crim.P. 1123(b). Reaching the merits of appellant’s claims, we find that the Commonwealth did not produce sufficient evidence to support convictions of criminal conspiracy and receiving stolen property. We must therefore vacate the judgments of sentence imposed on appellant and order him discharged.

On February 18, 1975, at approximately 11:45 p. m., police officers responded to a call that a burglary was in progress. The eyewitness who placed the call stated that two men were breaking into a garage next to the house at 304 West Hotter Street in Philadelphia. The officers arrived on the scene and apprehended two suspects.

At approximately 5:40 a. m. the following morning, February 19, 1975, one of the officers who had responded to the burglary call observed appellant pulling a handcart with three cartons on it north on Germantown Avenue. The location was two blocks from the scene of the earlier burglary. Although appellant was doing nothing illegal, the officer decided to stop him for a brief investigation. The officer testified that he was not in any way concerned for his safety.

Upon effecting the stop, the officer noticed two one-gallon containers of Sears anti-freeze in one of the cartons. The officer testified that he had seen six such containers at the scene of the earlier burglary and his suspicions were thus aroused. He conducted a further search of the cartons and discovered ten cans of M & R brand anti-freeze as well as various tools. Appellant did not answer, to the officer’s satisfaction, questions concerning appellant’s destination and the source of the various items. Appellant was arrested and transported to the scene of the Hotter Street burglary. The victim of that crime could not make a positive identification of any of the items, but stated that the handcart, cartons, and anti-freeze were the same kind as those owned by him.

Appellant filed a motion to suppress the evidence obtained during the stop and search of February 19, 1975. This motion was argued and denied on August 14, 1975, and appellant was tried the same day by the judge who heard the suppression motion. Although trial was completed in one day, judgment was reserved until September 4, 1975. At that time, appellant was found guilty on both charges and was sentenced to two concurrent terms of six to twenty-three months imprisonment. The lower court also made parole conditional on appellant’s in-patient participation in a drug rehabilitation program. Appellant’s counsel then made oral post-trial motions challenging the sufficiency of the evidence to support either conviction and also the court’s refusal to suppress physical evidence resulting from an allegedly illegal stop and search.

We direct our initial inquiry to the effect and significance of the oral post-trial motions made by appellant’s counsel. At the conclusion of trial, Rule 1123(c) assumes a position of primary importance. This section states:

“(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of his right to file post-verdict motions and of his right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal.”

Responsibility rests upon the trial judge to impart the above-recounted information to the defendant. This is a vital function in several different respects. First, it insures that the defendant is apprised of his post-verdict rights and their correlative significance in terms of the appellate process. The defendant’s appellate rights are thus protected and unintelligent waiver of these rights is precluded. Second, adherence to the dictates of Rule 1123(c) makes possible the fair and logical application of the theory of waiver in regard to inadequately preserved claims for appellate review.

The concept of waiver of appellate claims, as promulgated by the Pennsylvania Supreme Court in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), has been treated and applied in a myriad of subsequent cases, both in that court and our own. The many considerations supporting the waiver rule were re-examined by the Supreme Court in Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975). Judicial economy is promoted by allowing the trial court a first opportunity to review and perhaps correct asserted trial errors. Effective appellate review is enhanced by the presentation of only those issues clearly framed in post-trial motions below. The appellate court receives the benefit of the trial court’s reasoning on these matters and proper presentation of potential appellate claims at trial engenders a complete record. Finally, careful preparation and effective trial advocacy are promoted, as an ill-prepared or careless attorney can no longer expect an appellate court to alleviate the consequences of his inadvertence.³ Post-trial procedure, the appellate process and the enforcing agency of waiver are thus closely interwoven in the judicial system of this Commonwealth. Rule 1123 serves a dual function within this universe, promoting the cause of efficient and effective legal process, but simultaneously protecting the rights of convicted defendants by assuring that post-trial claims are not unknowingly or unintelligently waived.

The section of Rule 1123 which is especially relevant to the instant case provides:

“(b) If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial. The defendant may also within the seven (7)-day period on the record voluntarily and understanding^ waive the filing of post-verdict motions. Prior to the acceptance of such waiver the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that his waiving of post-verdict motions shall preclude his raising on appeal any issues which might have been raised in such motions.”

In a situation where the defendant indicates his intention or desire to enter oral post-verdict motions, one possible interpretation of the above-quoted language would make it the responsibility of the trial judge to establish on the record the defendant’s consent to this procedure. We do not believe that the rule contemplates the placing of this additional burden upon the trial court. If the trial judge has properly informed the defendant, upon the record in open court, of his post-verdict rights under 1123(c), and the defendant, by counsel, thereafter proceeds to make oral motions, these motions would be proper and effective under 1123(b). In the aforestated circumstances, the post-trial claims raised orally would be properly preserved for appellate review, and assuming no further written motions were timely filed, arguments not included in the oral motions would be waived for appellate purposes.

In cases dealing with waiver or withdrawal of post-trial motions, our Supreme Court has held that the record must demonstrate the course of action chosen by the defendant to have been “knowing and intelligent.” Commonwealth v. Schroth, 458 Pa. 233, 236, 328 A.2d 168, 169 (1974). This court has clearly indicated that the information required by Rule 1123(c), appearing on the record, could support a finding of waiver. Commonwealth v. Fryberger, 232 Pa.Super. 127, 334 A.2d 743 (1975). It would be highly incongruous to set a more stringent standard of proof in order to bind to his choice a defendant who elects oral post-trial motions than is required to prove a waiver or withdrawal of post-trial motions in toto. This would not constitute a presumption of waiver of appellate rights from a silent record, see Commonwealth v. Fryberger, supra. Where the record reflects that the defendant was informed of his rights under 1123(c), the subsequent entry of oral motions may reasonably be construed as “a deliberate, intelligent and voluntary act.” Commonwealth v. Coleman, 458 Pa. 324, 326, 327 A.2d 77, 79 (1974).

Having determined that defense counsel’s oral motions at the conclusion of trial properly preserved, under Pa.R. Crim.P. 1123(b), the claims raised in this appeal, we now proceed to examine the merits of those claims. Appellant first contends that the evidence adduced by the Commonwealth was insufficient to prove him guilty of conspiracy to commit burglary. Section 903 of the Crimes Code contains the following definition of criminal conspiracy:

“(a) A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.”

“It is established law in this Commonwealth that a conspiracy may be proved by circumstantial evidence as well as by direct evidence.” Commonwealth v. Eiland, 450 Pa. 566, 570, 301 A.2d 651, 652 (1973). Further, “while more than mere association must be shown, ‘[a] conspiracy may be inferentially established by showing the relation, conduct or circumstances of the parties, and the overt acts on the part of coconspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed: [citation omitted].’ ” Commonwealth v. Roux, 465 Pa. 482, , 350 A.2d 867, 870 (1976), quoting Commonwealth v. Horvath, 187 Pa.Super. 206, 211, 144 A.2d 489, 492 (1958). However, regardless of the nature of the evidence, it is always necessary that the Commonwealth prove that the defendant shared “. . .a common understanding or agreement which is the heart of every conspiracy.” Commonwealth v. Roux, supra 465 Pa. at 487, 350 A.2d at 869. See also Commonwealth v. Waters, 463 Pa. 465, 345 A.2d 613 (1975); Commonwealth v. Yobbagy, 410 Pa. 172, 188 A.2d 750 (1963).

In this case, the Commonwealth adduced no proof of appellant’s participation in an unlawful agreement or understanding. No evidence was produced to link appellant, either directly or circumstantially, with the two other burglary suspects. Viewing the record in the light most favorable to the Commonwealth and granting to it all reasonable inferences from the evidence, the only matter established at trial was that appellant was apprehended in possession of certain goods which were similar to those stored in the complainant’s garage prior to February 18. There was no testimony identifying appellant as a participant in the February 18 burglary attempt, nor was there any testimony indicating that appellant even knew the two suspects arrested on that occasion. Given the complete absence of evidence of an unlawful agreement, appellant’s conviction for conspiracy could have been based only on impermissible suspicion and conjecture. We therefore vacate the judgment of sentence imposed on appellant on the charge of criminal conspiracy.

The second contention advanced by appellant is that the evidence was insufficient to convict him of receiving stolen property. Section 3925 of the Crimes Code defines this offense as follows:

“(a) A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.”

The requisite factors for proof of this crime are set out in Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971), where the court states: “[i]t is settled that the Commonwealth has the burden of proving three distinct elements of the crime of receiving stolen goods: (a) that the goods are stolen; (b) that the defendant received such goods; and (c) that he received them knowing, or having reasonable cause to know, that they were stolen.” See also Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973); Commonwealth v. White, 233 Pa.Super. 195, 334 A.2d 757 (1975).

Appellant particularly asserts that the evidence failed to prove beyond a reasonable doubt that the goods found in his possession in the early hours of February 19, 1975, were stolen. The complainant testified that a police officer brought appellant to his garage that same morning. The officer showed the complainant the items taken from appellant at the time of his arrest, including a handcart, a trash barrel, several containers of anti-freeze and some tools. At trial, the complainant first stated that he had identified the property as his. However, upon further questioning, the complainant testified that he could not identify any of the cans of anti-freeze other than that some were the same brand name (Sears) as those he had kept in his garage. The complainant did not identify or claim to own the cans of M & R anti-freeze. According to the complainant’s further testimony the handcart and trash barrel were similar to items kept in his garage prior to the burglary and missing thereafter, but he could not specifically identify them as his property. Finally, a police officer testified that the complainant had identified the tools found in appellant’s possession. The complainant, however, stated that he did not remember being shown any tools nor was he even certain that any tools had been taken from his garage.

“In any criminal prosecution, the Commonwealth has an unshifting burden to prove beyond a reasonable doubt all elements of the crime.” Commonwealth v. Rose, 457 Pa. 380, 389, 321 A.2d 880, 884 (1974). From the facts recounted above, it is clear that the Commonwealth did not produce evidence establishing beyond a reasonable doubt that the property in appellant’s possession had been stolen from the complainant’s garage or that it had been stolen at all. We must therefore vacate the judgment of sentence imposed on the charge of receiving stolen goods. Because we vacate both sentences imposed on appellant, we order his discharge.⁴

HOFFMAN, J., files a concurring opinion in which CER-CONE and SPAETH, JJ., join.

1 . 18 Pa.C.S. § 903.

2 . 18 Pa.C.S. § 3925.

3 . The rubric of ineffective assistance of counsel acts to prevent criminal defendants from suffering injustice due to counsel’s negligence or lack of skill.

4 . Our disposition obviates consideration of appellant’s illegal search and seizure claim.