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HomeMy WebLinkAboutCP-21-CR-1595-2003 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-21-CR-1595-2003 CHARGE: (1) ROBBERY (2) UNLAWFUL RESTRAINT (3) CRIMINAL CONSPIRACY - ROBBERY AFFIANT: DET. GLENN ADAMS CHRISTOPHER A. TAYLOR IN RE: OPINION PURSUANT TO RULE 1925 On May 13, 2004, the defendant was found guilty of counts of robbery, criminal conspiracy and unlawful restraint. On July 27, 2004, the defendant was sentenced to a total aggregate sentence of not less than five nor more than ten years in a state correctional institution. The five to ten year sentence on the robbery count was imposed as required because of the defendant's use of a firearm in the commission of the robbery. The charges arose out of an incident that occurred at approximately 8:00 p.m. on May 28,2003. The defendant, Christopher Taylor, entered the Subway sandwich shop on the Carlisle Pike in Mechanicsburg, Cumberland County, brandishing what appeared to be a semi-automatic handgun. He commanded Subway employee, Dustin Joynt, to empty the cash register. When another employee, Jennifer Soucek, attempted to leave the store, Taylor brought her back at gun point and compelled her to open the business safe. In a statement of matters complained of on appeal, the defendant contends that there was not sufficient evidence to establish that the defendant committed the robbery and/or used a firearm. In addition, he contends that the court erred when we failed to instruct the jury on certain matters relating to the testimony of a co-defendant: namely, that the co-defendant's CP-21-CR-1595-2003 prior conviction for criminal mischief did not constitute a crimen falsi and that they should consider the corrupt nature of accomplice testimony. The Commonwealth presented sufficient evidence during trial to show that Taylor "used or knew of the use of a firearm or replica thereof during the commission of the robbery." When reviewing whether the Commonwealth presented sufficient evidence, the test is "whether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt." Commonwealth v. Bastone, 353 A.2d 827, 829 (Pa. 1976). Viewing the evidence in favor of the Commonwealth, it is clear that the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that Taylor used or knew of the use of a firearm during the commission of the crime. The Commonwealth's first witness was Jennifer Soucek, the Subway employee who was working in the restaurant during the crime. Soucek testified that she saw the suspect enter the Subway and, when the suspect was approximately fifteen to twenty feet from her, pull out a small black handgun. Soucek continued to testify that the suspect pointed the gun at her. Soucek also testified that the suspect had the gun pressed against her back as the suspect guided Soucek back into the store after she had attempted to escape. Once back in the store, the suspect apparently rushed Soucek to open the safe while threatening to "blow [her] brains out." Additional testimony also supports the conclusion that the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that Taylor used a firearm during the 2 CP-21-CR-1595-2003 commission of the crime. Amanda Whittington, the friend Taylor went to visit in Ohio after the robbery, testified that Taylor told her that he used a pellet gun during the robbery. Another friend, Whitney Sholley, also testified that in her statement to the police she said that Taylor had told her that he used a gun during the robbery. Part of the Commonwealth's case also included showing a videotape of the robbery as recorded by the Subway store's security camera. The camera clearly shows the robber brandishing the weapon involved in this case. The tape as well as the testimony of the witnesses lay to rest the question of whether or not the perpetrator visibly possessed a firearm or firearm replica. The Commonwealth also presented sufficient evidence during the trial to establish that it was Taylor who committed the robbery. As noted above, Taylor admitted committing the crime to at least two of the Commonwealth's witnesses. In addition to the Commonwealth's evidence, Taylor's co-defendant, Konrad Crist, testifying in his own defense and not as a Commonwealth witness, testified that he witnessed Taylor point the gun at Soucek as Crist took Soucek back into the restaurant to retrieve more money. Crist testified, also, that he, Crist, drove Taylor to the Subway for the purpose of committing the robbery and fled with him from the store. We are satisfied that the evidence in this case is sufficient, if not overwhelming. In this matter, both defendants, Christopher Taylor and Konrad Crist, were tried together. Counsel for Mr. Taylor attempted to elicit testimony concerning a prior conviction ofMr. Crist for criminal mischief. This testimony was disallowed by the court. The Pennsylvania rules of evidence permit an attack on a witness' credibility when the witness 3 CP-21-CR-1595-2003 has been convicted of a crime in the last ten years and the crime "involved dishonesty or false statement." PA. R. EVID. 609(a), (b). A crime is determined to be crimen falsi by looking at both the elements of the crime and the specific conduct of the criminal during the commission of the crime. Commonwealth v. Harris, 658 A.2d 811,813 (Pa. Super. 1995). Criminal mischief is defined by five disjunctive elements, only one of which includes any element of dishonesty or false statements. See 18 PA. CONS. STAT. S 3304(a) (2004).1 The record does not state the particular subsection of S 3304 that co-defendant Crist pled guilty to, so it cannot be determined if this is a crimen falsi crime by merely referring to the statute. As for Crist's actual conduct, the record merely states that Crist took a donation jar. There is no indication that Crist used "dishonesty or false statement[s]" to take the donation jar. Arguably, the theft of the donation jar is a crimen falsi. Under Com. v. Harris, id., however, in making a determination as to whether a prior offense is a crimen falsi, the court must consider both the elements of the crime of which the defendant was convicted and the underlying facts. In this case, it would not have been accurate for us to instruct the jury that 1 "A person is guilty of criminal mischief if he: (1) damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means listed in section 3302(a) of this title (relating to causing or risking catastrophe); (2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property; (3) intentionally or recklessly causes another to suffer pecuniary loss by deception or threat; (4) intentionally defaces or otherwise damages tangible public property or tangible property of another with graffiti by use of any aerosol spray-paint can, broad-tipped indelible marker or similar marking device; or (5) intentionally damages real or personal property of another." 4 CP-21-CR-1595-2003 criminal mischief is a crimen falsi. An analysis of the factual basis ofMr. Crist's conviction would thus, arguably, be barred. Alternatively, even if this was a crime of crimen falsi and the court was in error, it was nonetheless harmless error. In Pennsylvania, an error is harmless "only if the appellate court is convinced beyond a reasonable doubt that the error is harmless." Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978). Under Pennsylvania's harmless error standard, an error is harmless if "the appellate court determines that the error could not have contributed to the verdict." Id at 164. Only when there is a '''reasonable possibility'" that the error "'might have contributed to the conviction'" is the error not harmless. Id Here, it is highly unlikely that the court's decision to deny Taylor's counsel the opportunity to impeach Crist's credibility under a crimen falsi theory contributed to Taylor's conviction. Even if the court would have permitted Taylor's counsel to impeach Crist's credibility, it is likely that the jury would have still found Taylor guilty. This is so in light of the virtually overwhelming testimony of his guilt. In addition, the per se rule admitting prior convictions involving dishonesty or false statements for the purpose of impeaching a criminal defendant was abandoned in Com. v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Instead, our Supreme Court has adopted an approach which places the matter within the sound discretion of the trial court after a balancing of factors which bear upon the competing interests involved. In this case, we were constrained to weigh the probative value of this conviction as far as Mr. Taylor was concerned against the prejudicial impact that such evidence would have with respect to the 18 PA. CONS. STAT. S 3304(a) (2004). 5 CP-21-CR-1595-2003 testimony ofMr. Crist. We are satisfied that the prejudice of this testimony outweighed any probative value. Finally, we are satisfied that we did not err in refusing to instruct the jury on accomplice testimony with respect to the testimony ofMr. Crist. The Pennsylvania Supreme Court has held that it is improper for a court to instruct the jury on accomplice testimony when a defendant is called by the defense. Commonwealth v. Russell, 383 A.2d 866, 868-69 (Pa. 1978). See also Commonwealth v. Heath, 419 A.2d 1 (Pa. Super. 1980). The Russell court recognized that accomplice testimony is proper when an accomplice is called to testify by the Commonwealth. Id at 868. In that situation, the witness has the motivation to inculpate others with the expectation of lenient treatment for himself. Id However, that motivation is absent when the witness is called by the defense. Id The Russell holding was applied in Commonwealth v. Noyer, a case with similar facts to the instant case. Commonwealth v. Noyer, 402 A.2d 679 (Pa. Super. 1979). In Noyer, the appellant and his co-defendant were each on trial for various counts. Id at 680-81. As in the instant case, only one of the accomplices testified at trial and that accomplice was called by the defense. Id at 684. Unlike the instant case, the trial court in Noyer instructed the jury on accomplice testimony. Id at 685. The Noyer court held that it was error to instruct the jury as to accomplice testimony and vacated the decision of the trial court. Id The Noyer court reasoned that the witness took the stand in his own defense, and not with the intention of assisting the Commonwealth in the prosecution of his accomplice. Id Furthermore, the witness did not even attempt to exculpate his co-defendant. Id 6 CP-21-CR-1595-2003 In this case, unlike most reported cases in this area, the accomplice charge was sought by a co-defendant and not by the Commonwealth. According to dicta in Noye, Id, where a co-defendant takes the stand and exculpates himself and inculpates his co-defendant, that co- defendant may be entitled to the accomplice charge. We have found no appellate case, however, which has reached this holding under facts even remotely similar to the matter sub judice. In this case, Mr. Crist did not exculpate himself except insofar as his knowledge of the use of a firearm. Moreover, by giving the accomplice charge, we would have instructed the jury that they should receive, with caution, the testimony of a defendant, testifying on his own behalf. We cannot help but think that this would have been highly prejudicial. November ,2004 Kevin A. Hess, 1. Jaime Keating, Esquire Chief Deputy District Attorney Linda S. Hollinger, Esquire Assistant Public Defender :rlm 7