Commonwealth v. Peluso

361 A.2d 852, 240 Pa. Super. 330, 1976 Pa. Super. LEXIS 1956

• Court: Superior Court of Pennsylvania
• Decided: April 22, 1976
• Docket: Appeal, 1230
• Status: Published

Opinions

Opinion by

Jacobs, J.,

On January 4, 1972 the home of Ray G. Snyder was burglarized. Seven rifles were taken. In their investigation, the police received information that led them to believe that appellant had in his possession at least one of the stolen rifles, a Weather by. A search warrant was obtained but the search failed to uncover any of the rifles. Nevertheless, appellant was still indicted for receiving on January 27, 1972 “one model 300 weatherbee [sic] rifle.” At trial a demurrer was sustained on that charge because the Commonwealth failed to prove that appellant knew the Weatherby was stolen. An appeal taken by the Commonwealth was withdrawn. Shortly thereafter, appellant’s former wife, a divorce having been obtained following the first indictment, brought to the police several rifles that her mother had found. Two .22 caliber rifles were identified as having been stolen from the same residence as the Weather by. Appellant was then indicted for receiving on January 27, 1972, the two stolen .22 caliber rifles. At the second trial appellant’s former wife testified that appellant received all the rifles at the same time on January 27, 1972, and that appellant had stated in her presence that he knew the rifles were stolen. Appellant was found guilty at the second trial. This appeal after conviction on the second indictment followed.

On appeal, several issues are raised. First, appellant raises the defense of double jeopardy as a ground for reversal. It would appear that an argument for collateral estoppel would be appropriate under the facts of this case. However, a review of appellant’s brief (no oral argument was made in this case) and the opinion of the lower court convinces us that appellant failed to raise the argument of collateral estoppel before our Court and before the lower court. Instead of arguing collateral estoppel, appellant’s argument in support of double jeopardy was based on Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, Pennsylvania v. Campana, 414 U.S. 808 (1973), addendum opinion, Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969 (1974), as well as §§109 and 110 of the Crimes Code.¹ Therefore, we initially hold that the argument of collateral estoppel is not before us. Commonwealth v. Mitchell, 460 Pa. 665, 334 A.2d 285 (1975).

Even if the argument of collateral estoppel was properly raised, we doubt its application to the facts of the present case. Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1971). However, the facts presented at the first trial connected appellant only with receiving the stolen Weather by on January 27, 1972. The issue of ultimate fact determined at that trial had no reference to the two other rifles appellant was later accused of receiving. Although the second trial demonstrates that appellant received all three rifles at the same time, that evidence was not part of the first trial. It is also true that before the first trial the police suspected that appellant had in his possession other stolen rifles. However, we cannot conclude that the determination of ultimate fact made at the first trial regarding the stolen Weatherby included a finding as to the rifles appellant was not accused of receiving and of which no evidence was there presented.

We will turn next to the argument contained in appellant’s brief. At first it must be recognized that §§109 and 110 of the Crimes Code are not applicable to the present case. The Crimes Code “does not apply to offenses committed prior to the effective date of this act and prosecutions for such offenses shall be governed by the prior law ____” Act of December 6, 1972, P.L. 1482, No. 334, §2.

Although the offense in the present case took place before the effective date of the Crimes Code, the second trial occurred following the addendum opinion of the Pennsylvania Supreme Court in Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974). There, the Pennsylvania Supreme Court stated: “The result this Court reached in Campana [first opinion] is entirely in harmony with section 110 of our Crimes Code, which became effective shortly after our decision.” Id. at 626, 314 A.2d at 856. Thus, the protections set forth in Campana apply to the present case. Campana specifically prohibits the reprosecution of a defendant for “any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial ....” Crimes Code at §110(1) (Ü).

Looking back at the facts of this case it now becomes evident that all the offenses of receiving the stolen rifles took place at one time on January 27, 1972. However, this was not known to the prosecuting officer at the time of the first trial. What was known by the prosecutor at that time? First, it was known by police that seven rifles were stolen from someone’s residence. Second, it was discovered that one of these rifles, the Weather by, found its way into the hands of appellant. Third, the police suspected that appellant may have possessed other stolen rifles but. a search for these rifles revealed nothing. While suspicion existed, there was no evidence to support a case against appellant for receiving any of the stolen rifles except the Weather by. In fact, the result of the first trial demonstrates that the Commonwealth did not even have a prima facie case against appellant for receiving the Weather by. The prosecuting officer did not at the time of the first trial know that appellant had committed any offense with regard to the other two rifles. It was not until after the first trial that appellant’s former wife brought to the police the other rifles and told them that appellant had received them with the Weatherby on January 27, 1972. We do not believe that Campana or §110(1) (ii) of the Crimes Code requires a prosecutor to charge an accused with an offense at a time when the prosecutor only suspects that the offense has been committed and has not uncovered any admissible evidence by a good faith investigation which would support a conviction for that offense.

Appellant next argues that the court below erred in permitting appellant’s former wife to testify as to certain statements made by appellant (that he knew the rifles were stolen) in her presence during their marriage. The court below ruled that Mrs. Peluso could testify only as to statements made by her husband in the presence of third persons. Appellant’s brief correctly perceives that the issue is not one of competency. Since the parties were divorced prior to the second trial, Mrs. Peluso became competent to testify against her husband. See Brown, Pennsylvania Evidence, 261 (1949). However, the eviden-tiary rule that a husband and wife may not testify as to confidential communications made to one another during the marriage remains in force even after death or divorce. See Hunter v. Hunter, 169 Pa. Superior Ct. 498, 83 A.2d 401 (1951). This rule, though, does not apply, when the communication is made in the presence of a third person which in effect destroys its confidentiality. Dumbach v. Bishop, 183 Pa. 602, 39 A. 38 (1898). Appellant first argues that the communication by appellant to his wife was first made privately before it was repeated in the presence of a third person, a John Bonetsky, and therefore the wife first learned of this information in a confidential manner. While it is true that the subsequent declaration in the presence of others does not remove the confidentiality of what was first disclosed privately, see, Whitehead v. Kirk, 104 Miss. 776, 61 So. 737 (1913), it does not follow that later statements made in the presence of others "were also confidential. If the statements were freely made in the presence of a third person it is obvious that they were not a product of the marriage relationship. But see, State v. Brittain, 117 N.C. 783, 23 S.E. 433 (1895) (statement made by wife in presence of third person when coerced by husband was still confidential). In the present case, there were no circumstances to show that the statements made by appellant in the presence of his wife and Bonetsky were private to the marriage relationship.

Appellant also argues that Bonetsky, the third person, and not Mrs. Peluso, was the only one who could testify as to these statements. It is well established that the wife may testify as to statements made in the presence of third persons during the marriage. Dumbach v. Bishop, supra. The lower court properly ruled that the former wife could testify as to statements made by appellant in the presence of others.

Appellant’s final argument is that it was error for the court below to charge the jury that it need not find that the rifles were received by appellant on January 27, 1972, the date listed in the indictment, if they were received on or about that time. “The general rule is ... [that] ‘[t]he Commonwealth is not bound by the date laid in the bill of indictment but can show any date within the statutory period and prior to the finding of the indictment, except in cases where time is of the essence of the offense.’” Commonwealth v. Boyer, 216 Pa. Superior Ct. 286, 288-89, 264 A.2d 173, 175 (1970) quoting Commonwealth v. Levy, 146 Pa. Superior Ct. 564, 571, 23 A.2d 97, 100 (1941). Time is considered of the essence when the defendant presents an alibi defense to the offense charged, Commonwealth v. Boyer, supra, or is in some other way prejudiced in his defense by the date set forth in the indictment. See Commonwealth v. Swint, 465 Pa. 450, 350 A.2d 851 (1976).

In the present case the only alleged prejudice from the court’s charge is that the prosecution would have been barred by the statute of limitations if the jury had found that the rifles were received on or before January 8, 1972. Since appellant was indicted on January 8, 1974, it was necessary for the offense to have been committed in the prior two years. Act of March 31, 1860, P.L. 427, §77, as amended, 19 P.S. §211 (1964). Otherwise, the prosecution would have been untimely according to the statute of limitations provided in the above act. A review of the trial record discloses no testimony that would place the offense of receiving the stolen rifles back to a date prior to January 8, 1972. Mrs. Peluso testified on direct that the appellant received the rifles on January 27, 1972, but on cross-examination she was unsure of the exact date. She did, however, state that it was the last week of January rather than the middle of the month. Because there was no evidence to indicate that the offense took place in early January, there is no possibility that the jury could have found that the crime occurred on a date in violation of the statute of limitations. No prejudice having been shown by appellant, we are convinced that it was not error for the court below to instruct the jury that the offense could have been committed on or about January 27, 1972.

For the above reasons, the judgment of sentence is affirmed.

1 . Act of December 6, 1972, P.L. 1482, No. 334, §1, 18 Pa.C.S. §§109, 110 (1973).