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HomeMy WebLinkAbout98-0959 criminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ROBERT ALAN KIEHL : 98-0959 CRIMINAL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J. February 9, 1999:-- On December 1, 1998, following a bench trial, defendant was found guilty of summary criminal mischief,1 and of the summary illegal discharge of an air rifle.2 On the summary mischief count, defendant was sentenced to pay the costs of prosecution, a $300 fine, restitution in the amount of $364.96, and undergo unsupervised probation for 90 days. On the count of the unlawful discharge of an air rifle, defendant was sentenced to pay the costs of prosecution and undergo unsupervised probation for 90 days consecutive to the period of unsupervised probation imposed on the count of criminal mischief. Defendant filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. The evidence in a light most favorable to the Commonwealth was as follows.3 Lynn Creason lives at 624 Park Avenue, New Cumberland, Cumberland County. In the winter of 1998, his Dodge Caravan had been vandalized on numerous occasions by pellets, eggs and nails. At approximately 8:30 p.m. on March 8, 1998, 1. 18 Pa.C.S. § 3304(a)(1). 2. 18 Pa.C.S. § 6304(b)(2). 3. Commonwealth v. Reddix, 355 Pa. Super. 514 (1986). 98-0959 CRIMINAL TERM Officer Tracy King of the New Cumberland Police Department was on stakeout where he could observe the Dodge Caravan that was parked in front of Creason's residence. Immediately before starting his stakeout, Officer King inspected the van to familiarize himself with the dents and damage caused by the prior acts of vandalism. Creason had washed some egg off the van earlier that day and was familiar with the numerous areas of damage to the vehicle. While on stakeout, Officer King saw a sport utility vehicle slow down in front of Creason's Dodge Caravan. The officer then heard a pellet gun being fired. The officer stopped the vehicle after it passed him. It was operated by defendant who was alone. Officer King obtained a search warrant for the vehicle and found a Daisy pellet gun underneath a blanket behind a seat. The pellet gun fires single shots. No pellets were found in the gun or in the vehicle. Officer King examined Creason's Dodge Caravan and saw a fresh dent that had not been there when he had inspected the vehicle earlier that evening. Creason examined his van and saw the fresh dent that he knew was not there when he washed the vehicle earlier that day. The new damage was consistent with a pellet that Officer King heard defendant fire from his vehicle when it passed Creason's Dodge Caravan, and was consistent with it having been fired from the Daisy pellet gun that the officer found inside defendant's vehicle. Creason and defendant were both postal employees. They had been union stewards and were not on good terms. In a concise statement of matters complained of on appeal, defendant alleges: -2- 98-0959 CRIMINAL TERM (1) There was insufficient evidence to support the verdicts of guilty. (2) The court erred in denying Defendant's motion to suppress evidence obtained per the search warrant in that the information in the affidavit of probable cause was stale and overboard and lacked sufficient indicia of reliability." (3) The court erred in permitting the Commonwealth to introduce evidence of other incidents involving damage to, or attempts to damage, Creason vehicles. In evaluating a challenge to the sufficiency of the evidence, we are to view all of the evidence admitted at trial in the light most favorable to the verdict winner, along with any reasonable inferences to be drawn therefrom. We must then determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Nicotra, 425 Pa. Super. 600 (1993). The facts and circumstances presented at trial need not preclude every possibility of innocence. Id. It is within the province of the fact-finder to pass upon the credibility of evidence. The fact-finder is free to believe all, part, or none of the testimony. Commonwealth v. Spencer, 432 Pa. Super. 631 (1994). The Crimes Code at 18 Pa.C.S. Section 3304(a) provides that, "a person is guilty of criminal mischief if he: (1) damages tangible personal property of another intentionally, recklessly, or by negligence in the employment of... dangerous means 4. Defendant filed a motion to suppress evidence which was denied by an order, Hess, J., on October 21, 1998. Judge Hess filed an opinion in support of that order of February 8, 1999. That opinion is incorporated into this opinion. -3- 98-0959 CRIMINAL TERM listed in section 3302(a) of this title .... "The means set forth in section 3302(a) include a "harmful or destructive force," and "any other means of causing potential widespread injury or damage." Section 3304(b) provides that when damage is under $500, criminal mischief is a summary offense. The Crimes Code at 18 Pa.C.S. Section 6304(b)(2) provides that "It shall be unlawful for any person to discharge any air rifle from across any highway or public land or any public place, except on a properly constructed target range." Section 6304(g) defines "Air rifles" as "Any air gun, air pistol, spring gun, spring pistol, B-B gun, or any implement that is not a firearm, which impels a pellet of any kind with a force that can reasonably be expected to cause bodily harm." In the case sub judice, the evidence and the reasonable inferences arising therefrom, overwhelmingly proved beyond a reasonable doubt that defendant, who had a motive, fired a pellet gun while he was in his vehicle on Park Avenue in front of Lynn Creason's Dodge Caravan, and that the pellet caused damage to Creason's vehicle. Defendant, citing Pa.R.E. 404(b)(2) and (3), maintains that the admission into evidence of incidents involving prior damages to Creason's vehicle was reversible error. Pa.R.E. 404(b) provides: (2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. (3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice. 98-0959 CRIMINAL TERM The Commonwealth did not introduce any evidence that defendant committed the prior vandalism. Rather, it introduced evidence that Creason's vehicle had been vandalized on prior occasions (1) to show why Officer King was on stakeout on the evening of March 8, 1998, and (2) to prove that the damage the Commonwealth maintained was caused by the pellet fired by defendant into the vehicle on March 8th, did not occur prior to that date. There was no prejudice to defendant in the admission of this relevant evidence. (DATE) Jaime Keating, Esquire For the Commonwealth Timothy L. Clawges, Esquire For Defendant Edgar B. Bayley, J. :saa -5-