Commonwealth v. Thomas
Commonwealth v. Thomas
Opinion of the Court
Appellant Dennis M. Thomas was convicted with a co-defendant in a jury trial on charges of robbery, theft, receiving stolen property, simple assault, and criminal conspiracy.
Facts adduced at trial established the following scenario of events. On the evening of December 23, 1977, the complainant Stephen Porter attended an auction in Gilbertsville, Pennsylvania, where he was successful in selling his automobile for the sum of $625.00. Following the auction, he began
A few hours later, Porter was shown an array of photographs at the Limerick police station and identified the appellant herein as the driver of the car. In addition, Porter chose the photograph of one Warren Hart and stated he looked like the passenger. Hart was arrested, but was shown later not to be involved in the incident. Hence, on December 27, 1977, Porter chose from another group of photographs the picture of co-defendant William Kocher. Kocher was then arrested, tried, and convicted along with appellant.
Appellant first asserts that he is entitled to a new trial because the verdicts were against the weight of the evidence. The grant of a new trial on the ground the verdict is against the weight of the evidence is committed to the sound discretion of the trial court. Commonwealth v. Chapman, 255 Pa.Super. 265, 386 A.2d 994 (1978); Commonwealth v. Thomas, 254 Pa.Super. 326, 385 A.2d 1362 (1978). Instantly, in addition to identification testimony, appellant
Appellant next challenges the admission of Porter’s in-court identification of him. At the pre-trial suppression hearing, the court found “by the narrowest of margins”, that the photographic displays as to both defendants were unduly suggestive and could not be admitted at trial. The court also ruled that Porter would be permitted to identify both of his assailants in court since the identifications were found to have a basis independent of any pre-trial suggestiveness. The particular defects in the photo array as to appellant were these: Porter’s description of the driver of the car was that of a white male, 5'8" or 5'10", missing or bent front teeth, shoulder length light blonde hair. From the seven or eight photos shown to the complainant, it seems only two or three, including appellant’s matched this description, thus improperly suggesting appellant as the perpetrator. Nonetheless, the court found that Porter’s view of appellant at the time of the crime was sufficient to allow the in-court identification, irrespective of the tainted pretrial identification. Appellant now challenges this finding.
Subsequent to a suggestive out of court confrontation, an in-court identification is admissible if, considering the totality of circumstances, the in-court identification had an independent origin sufficiently distinguishable from the illegal encounter so as to be purged of the primary taint. U.
the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
Manson v. Braithwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); Fowler, Taylor, supra.
On the evening of the robbery, Porter first observed appellant as the latter stopped the Volkswagen under a utility lamp along Route 73. The victim looked into the car from the passenger side and engaged in a one minute conversation with the occupants, all the while viewing their faces at close range. During the ride to the Wine Press, about fifteen minutes elapsed during which appellant occasionally turned to speak with Porter. When they arrived at the Wine Press, Porter again observed appellant by the light of the parking lot as he thanked is soon-to-be assailant for the lift. Minutes later, appellant and Kocher offered the complainant a further ride to Collegeville during which Porter again spoke with and observed appellant at close range. When the car pulled into the woods and the occupants exited. Porter observed appellant in the shine of the headlights. Altogether, Porter was in the company of ap
Appellant lastly contends that his conspiracy conviction is invalid because the Commonwealth was improperly permitted to amend the complaint at the preliminary hearing. The complaint filed against appellant alleged that he “did conspire with one Warren Hart to commit” the crimes of robbery, theft, RSP, and assault. As we have already noted, Hart was subsequently shown not to be appellant’s accomplice and co-defendant William Kocher was arrested and charged as a co-conspirator. At appellant’s preliminary hearing on January 13, 1978, the Commonwealth, over defense objection,
Rule 150 provides:
Defects in Complaint, Citation, Summons or Warrant
(a) Informal Defects:
No person arrested under a warrant or appearing in response to a summons or citation shall be discharged from custody nor shall any case be dismissed because of any informal defects in the complaint, citation, summons, or warrant, but the complaint, citation, summons or warrant, may be amended at any time so as to remedy any such informality.
(b) Substantive Defects:
If a complaint, citation, summons or warrant contains a substantive defect, the defendant shall be discharged unless he waives the defect. Nothing in this rule shall prevent the filing of a new complaint or citation and the issuance of process in which the defect is corrected in a proper manner.
It is, thus, clear that the omission of an offense from a complaint constitutes a “substantive defect” which cannot be remedied by merely amending the complaint. Commonwealth ex rel. Fitzpatrick v. Mirarchi, 481 Pa. 385, 392 A.2d 1346 (1978); cf. Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979); Commonwealth v. Jonnet, 265 Pa.Super. 315, 401 A.2d 1228 (1979); see also, Commonwealth v. Brocklehurst, 266 Pa.Super. 335, 404 A.2d 1317 (1979). The purpose behind the prohibition against substan
then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, for the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.
Commonwealth v. Stanley, 265 Pa.Super. 194, 212-213, 401 A.2d 1166, 1175 (1979) (footnotes omitted).
We think it clear that an outright substitution of a named co-conspirator in a complaint constitutes “a different set of events” and could require “materially different defenses” of the accused. A charge of conspiring with one Hart to commit certain offenses must necessarily embrace a unique factual setting which is radically altered when the Commonwealth seeks to charge that appellant conspired with Kocher, and not Hart. Further, a proposed defense to a conspiracy charge may be rendered useless and a new defense strategy may be called for depending upon whom the defendant is alleged to have conspired with. This is thus not a case wherein the complaint alleges a conspiracy, but avers that the identities of one or more co — conspirators are unknown, 16 Am.Jur.2d, Conspiracy, § 28, or where the identity of the co-conspirator is omitted or left blank, yet the accused is fully aware of who his co-conspirator is, Commonwealth v. Brown, 229 Pa.Super. 67, 323 A.2d 845 (1974). Indeed, the Supreme Court over 100 years ago drew
There remains the question whether we should remand for resentencing. In Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972), we said, “When the invalidity of the conviction on one count which may have influenced the sentence becomes apparent . .., the proper course is usually to vacate the sentences and remand for resentencing on the valid counts without consideration of the invalid one.” id., 223 Pa.Super. at 65, 296 A.2d at 886. See also, Commonwealth v. Starkes, 268 Pa.Super. 108, 407 A.2d 853 (1979); Commonwealth v. Rios, 246 Pa.Super. 479, 371 A.2d 937 (1977); Commonwealth v. Leonhard, 245 Pa.Super. 116, 369 A.2d 320 (1976). We have also held, however,
We think this is such a case. On the convictions for robbery and conspiracy, the court imposed concurrent sentences of two to five years imprisonment. On the remaining charges, sentence was suspended. Our review of appellant’s sentencing hearing reveals a short juvenile criminal record and a more lengthy adult record involving marijuana possession and a string of burglaries in Berks County. The court specifically found that appellant’s past record, coupled with the present convictions, compels the conclusion that a term of incarceration is warranted to reduce the risk that he would commit another offense. We are persuaded that a remand instantly would only result in the same sentence, cf. Grant, supra.
Judgment of sentence for conspiracy is reversed and appellant is discharged on that count. Judgments of sentence for robbery, theft, RSP, and simple assault are affirmed.
. Crimes Code, 18 Pa.C.S.A. § 3701, 3921, 3925, 2701, 903 respectively.
. The opportunity of the witness to observe the defendant at the time of the crime is considered to be the most important of the MansonBiggers factors. Commonwealth v. Smith, 262 Pa.Super. 258, 396 A.2d 744 (1978).
. No transcript of the preliminary hearing is included in the record before us and hence it is impossible to determine whether in fact counsel objected in order to preserve the claim. When counsel filed his motion to quash the magistrate’s transcript, he averred that he did object to the amendment, while the Commonwealth in its answer denied that he objected and demanded strict proof. No transcript of
. Act of March 31, 1860, P.L. 427, § 13 (19 P.S. § 433) repealed by § 2(a) [377] of Act 1978, April 28, P.L. 202, No. 53, permitting amendments to indictments which are “not material to the merits of the case.”
Concurring in Part
concurring and dissenting:
Although I agree that we must reverse the judgment of sentence on the charge of conspiracy, I dissent from that
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, v. Dennis M. THOMAS, Appellant
- Cited By
- 24 cases
- Status
- Published