Loading...
HomeMy WebLinkAbout98-1862 criminalCOMMONWEALTH ·IN THE COURT OF COMMON PLEAS OF ·CUMBERLAND COUNTY, PENNSYLVANIA V. ' · 98-1862 CRIMINAL TERM IN RE' OPINION PURSUANT TO PA. R.A.P. 192_5 Guido, J., December 20, 1999 The Defendant was charged with issuing four bad checks in violation of Section 4105 of the Crimes Code.~ On August 20, 1999, a non-jury trial was held before this Court. We found the Defendant guilty of two counts and not guilty of the other two. On October 5, 1999, we sentenced the Defendant to undergo concurrent periods of intermediate punishment with supervision for sixty months on the condition that he comply with certain restorative sanctions. One restorative sanction was a directive that he make restitution of $8797.88 in connection with one check and $13,619.06 in connection with the other. Defendant has filed a timely appeal from that order of RONALD C. GROOMS sentence. According to his statement of matters complained of on appeal, Defendant has raised three allegations of error as follows: 1) The evidence was insufficient to support the verdicts. 2) This Court committed reversible error by excluding from evidence nearly all of the checks written to the victim over the years. 3) This Court committed reversible error in refusing defense counsel's request to make a closing argument. We will address each allegation of error in the opinion that follows. ~ 18 Pa.C.S.A. § 4105 98-1862 CRIMINAL FACTUAL STATEMENT The Harrisburg Auto Auction is located in Cumberland County, Pennsylvania.2 The Defendant is a used car dealer.3 On April 9, 1998, he purchased two vehicles from 4 Later in the same the Harrisburg Auto Auction and issued two checks to pay for them. month he purchased two additional vehicles and issued two additional checks to pay for them. We found the Defendant guilty in connection with the first two checks and not guilty in connection with the latter two checks.5 The Defendant was aware that he did not have enough money in the bank to cover the checks when they were issued.6 However, he testified that the auto auction had agreed to hold the checks until he had money to cover them. We chose not to believe him. The Defendant testified that from the time he began doing business with the Harrisburg Auto Auction in 1988 there were times the owner would agree to hold checks.7 Over the years he purchased about 100 cars from the auction, about half of which involved an agreement to hold the check until funds were available,a If a check was to be held, there was always a specific agreement to do so.9 During the 1990's the 2 Trial Transcript, p. 12. 3 Trial Transcript, p. 9. 4 Trial Transcript, pp. 9, 27, 28. 5 Trial Transcript, pp. 9, 27, 28. There is a dispute as to when the checks were issued. The Defendant testified that they were issued on April 20 with no date filled in on them. The victim testified that they were issued on April 27, 1998. We could not find beyond a reasonable doubt that the checks were not post dated. See Trial Transcript, p. 77. 6 Trial Transcript, pp. 65, 66, 71. 7 Trial Transcript, pp. 58, 59. s Trial Transcript, p. 60. 9 Trial Transcript, p. 58. 98-1862 CRIMINAL agreement was always made with Todd "Chip" Hoynitski who is the vice president and part owner of the auction.~° Chip Hoynitski testified that no such agreement ever existed.~ In fact, the ~2 However, he did acknowledge that, auction is strictly a cash business, no check no car. for various reasons, some checks were not immediately deposited.~3 In any event, by his own testimony, Defendant acknowledged that any agreement to hold the checks would have to have been made with Chip.TM The two checks upon which the guilty verdicts were based were issued to an employee on April 9, 1998, at a time when Chip was on vacation.~5 Therefore, there could not have been any arrangement to hold those checks. The checks in question were deposited by Chip on April 29, 1998.~6 They were presented for payment to the Defendant's bank on April 30, 1998.17 They were returned for insufficient funds on May 1, 1998.~8 The Defendant was notified in writing that the 19 He has been unable to make the checks checks were returned for insufficient funds. · good and has since filed a petition in bankruptcy.2° l0 Trial Transcript, p. 59. ~ Trial Transcript, p. 9, 14. ~2 Trial Transcript, p. 14. ~3 Trial Transcript, pp. 15, 16. Internal bookkeeping procedure sometimes result in a delay of more than a week. In addition, Chip Hoynitski is the only one authorized to make deposits. So if he is on vacation or out of the office, additional delays ensue. ~ Trial Transcript, pp. 23, 24, 25, 29. ~4 Trial Transcript, p. 59. ~5 Trial Transcript, pp. 27, 28, 29. x6 Trial Transcript, pp. 33, 34. ~7 Trial Transcript, pp. 33, 34. ~8 Trial Transcript, pp. 35, 36. ~9 Trial Transcript, pp. 43, 44, 71. 20 Trial Transcript, p. 44. 98-1862 CRIM~AL DISCUSSION Insufficiency Of The Evidence. Defendant claims that the evidence presented was insufficient to convict him of violating Section 4105 of the Crimes Code. The standard of review to be applied to a sufficiency of the evidence claim is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, it was sufficient to enable the fact finder to conclude that all of the elements of the offense were established beyond a reasonable doubt. Commonwealth v. Cox, 556 Pa. 368,381,728 A.2d 923,929 (1999). Section 4105 of the Crimes Code provides that the offense of bad checks is committed if a person issues a check knowing that it will not be honored by the drawee. (18 Pa. C.S.A. § 4105(1)(2)). In the instant case the Defendant admitted issuing the checks to the Harrisburg Auto Auction at a time when he knew that there were not sufficient funds in his bank account to cover them. Since we chose not to believe his testimony regarding an agreement to hold the checks, the above evidence is certainly sufficient to support the verdict. Refusal To Admit Certain Evidence. The Defendant offered as-exhibits copies of checks written to the Harrisburg Auto Auction from 1988 through 1998. We only allowed him to enter into evidence the checks written in the years 1996, 1997 and 1998.2~ However, we did allow him to question Mr. Hoynitski at length about checks issued to the auction prior to that time.22 2t Trial Transcript, p.74, Defendant's Exhibit 1. 22 Trial Transcript, pp. 17-19. 98-1862 CRIMINAL The exhibits were intended to bolster Defendant's testimony that an express agreement existed to hold the checks in question. We felt that checks written before 1996 would not be relevant to any express agreement that was allegedly made in 1998. Furthermore, the proffered evidence, even if relevant, would have been merely cumulative since we allowed counsel to question Mr. Hoynitski with regard to checks issued in prior years. The admissibility of evidence rests within our sound discretion. Commonwealth v, Hawkins, 549 Pa. 352, 701 A.2d 492 (1997). We submit that we did not abuse that discretion in failing to admit the proffered exhibits. Refusal To Allow Defense Counsel To Make A Closing Argument. Defendant claims that we committed reversible error by refusing to allow his counsel to make a closing argument. We submit that his counsel was, in fact, given that opportunity and chose not to exercise it. The following exchange took place between the Court and counsel at the conclusion of the case: THE COURT' Okay. I'm going to retire to deliberate. You want to argue first? MR. RICE' I'm sorry? THE COURT: Do you want to argue before I retire to deliberate? MR. RICE: If that's possible, Your Honor. THE COURT' Now, tell me something that I haven't heard. Is that possible? MR. RICE' I was just going to package things, Your Honor. Is that possible? THE COURT' I'm pretty good at packaging. MR. RICE: I suppose not then, Your Honor. THE COURT: I think I understand the issues. I think I understand them very clearly. 98-1862 CRIMINAL MR. RICE: Yes, Your Honor.23 Certainly, had counsel stood firmly on his right to make a summation,24 we would have allowed him to do so. We were merely trying to focus his arguments and point out to him that we understood the issues. Under those circumstances, he chose not to make a closing argument. DECEMBER ~}, 1999 Edward E. Guido, Jaime M. Keating, Esquire For the Commonwealth Public Defender's Office 'sld 23 Trial Transcript, pp. 75-76. 24 _Commonwealth v, McNaLr, 208 Pa. Super. 369, 222 A.2d 599 (1966)i~ Comm~wealti~ v. Brown, 544 Pa. 406, 676 A.2d 1178 (1996). ~t~, ['" '