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HomeMy WebLinkAbout00-1830 criminalCOMMONWEALTH OF · IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA · CUMBERLAND COUNTY, PENNSYLVANIA V. · NO. 00-1830 CRIMINAL BROOKS THOMAS KENNEDY, · CHARGE: UNSWORN FALSIFICATION DEFENDANT TO AUTHORITIES OPINION HOFFER, P.J.: On January 17, 2001, a jury found defendant, Brooks Thomas Kennedy, guilty on the charge of Unsworn Falsification to Authorities. Defendant now raises three matters on appeal to the Pennsylvania Superior Court. Specifically, defendant expresses the matters complained of on appeal as follows: 1. There was insufficient evidence to prove beyond a reasonable doubt that Mr. Kennedy made a written false statement. 2. The Court erred in allowing evidence of Appellant's previous conviction for reckless endangerment to be introduced at trial. 3. The Court erred in allowing the Commonwealth to comment during opening statements and presenting testimony during its case-in-chief regarding Appellant's alleged prior conviction for aggravated assault. The test to be applied in determining the sufficiency of the evidence to sustain a conviction is whether, accepting as true all the evidence and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable NO. 97-0818 CRIMINAL doubt that the accused is guilty of the crime or crimes with which he has been charged. Commonwealth v. Barnes, 310 Pa. Super. 480, 482-83, 456 A.2d 1037, 1038 (1983). As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner. Id. citing Commonwealth v. Walker, 498 Pa. 33, 42, 444 A.2d 653, 658 (1992). The Commonwealth is entitled to benefit of all reasonable inferences deducible from the evidence. Commonwealth v. Gease, 548 Pa. 165, 168,696 A.2d 130, 132 (1997). The jury, as trier of fact, is free to believe all, part or none of the evidence presented. Commonwealth v. Tate, 485 Pa. 180, 182,401 A.2d 353,354 (1979). For present purposes, under the Crimes Code, Section 4904(a)(1) provides: a person commits a misdemeanor of the second degree if, with intent to mislead a public servant in performing his official function, he: makes any written false statement which he does not believe to be true .... Act of December 6, 1972, P.L. 1482, §1, 18 P.a.C.S. § 4904. In the instant case, the Commonwealth's evidence illustrated the following: On March 28, 2000, defendant filed, with the Sheriff's office, a standard application to carry a firearm. Of particular importance to this appeal are blocks 29, 31, and 39 on the license application. Block 29 asks: Have you ever been convicted of a crime enumerated in 6105(b), or do any of the conditions under 6105(c) apply to you? Within Block 29 bold print instructs the applicant to (READ INFORMATION ON BACK PRIOR TO ANSWERING). The defendant checked no. The defendant testified under oath that he was well aware of the part that said, "read the 2 NO. 97-0818 CRIMINAL information on the back prior to answering" block 29. He read the back of the application and properly realized that those offenses did not prohibit his ability to carry a firearm. Block 31 provides: Have you ever been convicted of an offense under the Act of April 14, 1972, (P.L. 233. No. 64), known as the Controlled Substance, Drug, Device and Cosmetic Act? Block 31 is a single question that does not refer to any other section of the application. However, the defendant checked no, despite knowing that he had a prior conviction of the offense in Dauphin County. The defendant testified that he knew he had previously been in court and had pled guilty to unlawful possession of marijuana and unlawful possession of paraphernalia. Block 39 provides (as pertinent): I hereby certify that the statements contained herein are true and correct to the best of my knoWledge and belief. I understand that, if I knowingly make any false statements herein, I am subject to the penalties prescribed by law .... This certification is made subject to both the penalties of Section 4904 of the crimes code (18 Pa.C.S. 4904) relating to unsworn falsifications to authorities and the uniform firearms act. The defendant admitted to signing block 39. The defendant admitted to reading the notice and understood that if he answered any questions falsely, he could be charged with a crime. The evidence illustrates that the defendant, knowing of his prior drug conviction, provided false information on the application 3 NO. 97-0818 CRIMINAL despite the warning in Block 39 not to make any false statements, under penalty of law. From the evidence, taken in the light most favorable to the Commonwealth, the jury could have inferred that the defendant made the written statement alleged on the form. The statement was false in that the defendant answered "no" to a question asking him whether he had been convicted of crimes under the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act. Finally the defendant knew his statement on the form was false and the defendant intended to mislead the Sheriff's office in order to obtain a license to carry a firearm. Issues 2 and 3 can be covered as one piece. In his opening remarks, the District Attorney suggested that he would prove that defendant was convicted of aggravated assault. - one of the offenses mentioned in Section 6105(b) of the firearm application. At the opening of Court on the second day of trial, the Deputy Clerk of Courts of Dauphin County was called as the records custodian. She verified the drug convictions. Apparently, however, she had previously told the Cumberland County Sheriff that defendant had a conviction for aggravated assault. It was not until she personally appeared for trial that she informed 'the District Attorney that the aggravated assault had been pled down to "reckless endangerment." (N.T.p. 33, line 16.) No objection was ever raised by defense counsel, nor was a curative instruction asked for. However, the Court, on its own, cleared up the matter for the jury by telling them that the only conviction that mattered had to do with any drug 4 NO. 97-0818 CRIMINAL offenses. (N.T.p. 54; p. 58, lines 19-22.) No exceptions were taken to the charge as the main thrust of the defense was that it was all one big mistake on the part of the defendant. 5