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HomeMy WebLinkAbout94-0500 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY PENNSYLVANIA : , v. : 94-0500 CRIMINAL TERM : DANIEL BLAINE KUHN : OTN: E505272-5 : CHARGE: ROBBERY IN RE: DEFENDANT'S POST-SENTENCE MOTION ~EFORE OLER, j. QRDER OF COURT AND NOW, this 20~ day of September, 1994, upon consideration of Defendant,s post-sentence motion for a new trial, and for the reasons stated in the accompanying Opinion, the motion is GRANTED. BY THE COURT, J~W~sley Ol~,-jr.,,j. ' William I. Gabig, Esq. Senior Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender : rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : 94-0500 CRIMINAL TERM : DANIEL BLAINE KUHN : OTN: E505272-5 : CHARGE: ROBBERY IN RE: DEFENDANT,S POST-SENTENCE MOTION BEFORE OLER j. Oler, j. OPINION and ORDER OF COURT This case presents the issue of whether a new trial should be awarded to a defendant found guilty of robbery by a jury, where certain incriminating facts contained in the prosecution,s opening statement were not presented in evidence. For the reasons stated in this Opinion, a new trial will be awarded. S--tatement of Fact~ As a result of a purse-snatching incident on Tuesday, November 20, 1993, in a mall parking lot in Carlisle, Pennsylvania, Defendant was charged with robbery.~ The sole issue at trial was whether Defendant was the perpetrator of the crime. Evidence adduced at the trial which supported a conviction consisted of the following: the testimony of the victim, who was unable to identify Defendant as the perpetrator; the testimony of a driver (a) who briefly pursued the perpetrator as he fled on foot and as he escaped in a car driven by a woman, (b) who noted that the car was a gray and tan Chevrolet Monza and obtained its license ~ Act of December 6 1972, C.S. ~3701(a)(1)(v)' , P.L. 1482, ~1, as amended, 18 Pa. 94-0500 CRIMINAL TERM number, (c) and who identified Defendant as the person being pursued; and a photograph of a gray Chevrolet Monza which Defendant said looked like his sister,s car. Defendant testified that he had not committed the robbery. He presented an alibi defense, which was supported in differing degrees by his father and mother. During the prosecution,s opening statement, the jury was told the following: The way [the police] developed the suspect, the way the police developed the suspect, I think that's what the defense is going to concentrate on. I don't know. They don't have to present a defense. They don't have to do anything. We have the burden of proof. But I anticipate that that's what they're going to focus on how it was developed. · · They get the registration right off the car, so they report that to the police. The police now have the registration of the car, and they can run that and find out who it belongs to. It turns out it belongs to the Defendant,s sister. They went and interviewed the Defendant,s sister. Initially, I think Chief Lebo from Mt. Holly -- she lived in Mt. Holly Springs -- interviewed her. She said -- and I anticipate this is going to come out into evidence; I'm not sure, but I'm pretty sure -- some strange man jumped in my car and just told me to go, and I didn't know who it was. I got scared, and so I just went with him. I just did what he told me to. So that's what she initially says. ' The police find that less than credible and interviewed her again on a separate occasion. I think it was another police 2 94-0500 CRIMINAL TERM officer. I think Ron Egolf from the Carlisle Police Department. Then she, at that interview, admits that, yes, I was driving. I was there. And, no, it wasn't some strange man that I was afraid of. It was my brother. She tells what happened. She tells the story of what happens. Now, what she does for the Commonwealth,s case is gives the police a suspect who they can then do this photo array on .... 2 In its opening statement, the defense countered these allegations by suggesting that the sister had given inconsistent stories to the police and was being dishonest. Defendant,s counsel conceded, however, that It]here is bound to be a question in your minds of why would she indicate or hint that Dan was involved in this thing if he wasn't. Quite frankly, I don,t have an answer to that No testimony was presented at trial that the sister had in fact been involved in the robbery, that her car's license plate corresponded to that of the get-away vehicle, or that she had implicated, or was implicating, Defendant as the robber. At the conclusion of this evidentiary phase of the case, Defendant,s counsel made the following motion for a mistrial: I am moving for a mistrial on the grounds that I believe there was some reference made during opening comments, both the prosecutor and 2 N.T. 8, In re: Opening Remarks, Defendant,s Motion for a Mistrial and Jury Charge, June 13-14, 1994. 3 N.T. 12, In re: Opening Remarks, Defendant,s Motion for a Mistrial and Jury Charge, June 13-14, 1994. 3 94-0500 CRIMINAL TERM actually myself, as to Daniel Kuhn's sister, the driver of the car. I understand that the -- the witness, name is, I think, Pamela Kuhn -- has chosen to exercise her right not to testify. I also understand that the district attorney,s office spoke with her about that this morning after the commencement of trial. b My request goes t ecaus T ~_~. . owards a mistrial e ~ ~leve and · Commonwealth ha ..... ~ 11 assert that the whether or n^~ ~ ~n ?nllgation to · . vu une withes .' ascertain their fifth amendment ri_L~ ln~en~s to invoke ~ prior to beginning the trial. I might add, for the record, that I also have that access to the witness and certainly would choose not to call her as my witness.~ The prosecutor responded that the sister, following the commencement of the trial, had indicated that, if called, she would exercise her fifth amendment right not to testify. The defense Counsel accepted this representation. Neither counsel called the sister as a witness, and no evidence was presented as to whether the prosecution had inquired prior to trial as to her willingness to testify. Defendant,s motion for a mistrial was denied. In its charge to the jury, the Court gave the following cautionary, or curative, instruction: As in any criminal case, counsel in this case made opening statements to you and also made closing arguments to you. It's very important that you understand, and you are so instructed, that the statements ~ N.T. 16, In re: Opening Remarks, Defendant,s Motion for a Mistrial and Jury Charge, June 13-14, 1994. 4 94-0500 CRIMINAL TERM of COUnsel regarding factual matters are not, themselves, evidence. The only evidence that you may consider in this case is what you heard from the witness Stand.5 Following deliberations, the jury returned a Verdict of guilty on June 14, 1994. Sentencing was held on July 26, 1994. Defendant was ordered to pay the costs of prosecution and to make restitution to the victim, and to undergo imprisonment in the Cumberland County Prison for a period of not less than seven months n three months 6 His release on b-'~ or more than twenty- ' al± was continued Upon COUnsel,s representation that a post-sentence motion Would be filed. Defendant filed a post-sentence motion for a new t~ial on August 5, 1994. The motion was based Upon t alleged error of the Court in ~-~- J- he following: (a) an (b) an alleged imr ~ng the motion for a mistrial and P oprlety of the prosecution in displaying a 5 N.T. 23, In re: Opening Remarks, Defendant,s Motion for a Mistrial and Jury Charge, June 13-14, 1994. 6 Order of Court, July 26, 1994. 7 Order of Court, July 26, 1994. 5 94-0500 CRIMINAL TERM prejudicial photo-array to the jury.8 A briefing schedule was established pursuant to Pennsylvania Rule of Criminal Procedure 1410(B)(2)(a), on August 8, 1994. Briefs were subsequently submitted by the parties. Statement of Law It is the general rule that "Iai defendant is entitled to a fair trial but not a perfect trial... Commonwealth v. Morris, 513 8 The record in this case does not appear to support the contention that the array was displayed to the jury. No request for a mistrial was made on such a basis· and in order to avoid the possibility of such a display without prior Court approval the following direction was made: CourtW~lr~n~he record indicate that the ened outside ~h~. jury. We'll ~ ~_ the presence of lnalcate that ~--' - ~i~ ~ record furth~ in chambe~ .... ~f~n~ une recess the Co,,~ ~12 ~_ ~ ~un counsel a,~ ~__ .-~ ~,=u ~,~uuo array from which the s'~~ znspecte~ the identification. ~ .... rgeant made his vidua~ t~ ...... P graphs of · ~=lu being two pictures of each, one a front-face picture and one a profile-face picture. From that array· which includes two photographs of th . ]ury could· in th- ~ -, e Defendant, a · = ~our~ s view· reasonably conclude that the Defendant has a prior criminal record. For that C~mmonwealth is instru~-~ - reason· the =uuu not to display the photo array to the jury withou ' Court permission ~ =_ t ~rst securin conference. ~ uo so a~ a side-ba~ N.T. 52-53, Transcript of Proceedin s addition· it ~s noted that the ~ ..... g , June 13-14 (1994). In not been briefed by Defendant.~°ouu concerning the photo-array has In view of the Court's ~- . · ~posi=ion of Defendant,s post- sentence motion· it is unnecessary to consider further this ground for relief. 6 94-0500 CRIMINAL TERM Pa. ~69, 178, 519 A.2d 374, 378 (1986). With respect to Statements made by the prOSecution during Opening remarks and not established expressed thereafter, the rule has been as fOllows: The district ~~S~ely establ~-'att°rney n rea ~=the Openin~ ~n all ~.~ =~u n~~ sOn~ble basis must exist to believe th Particular fact w ~?_mmOnweal th v ill - at a nfo-- rf Will k_ (1976). ~L 50, 64 ~=oeCUtor,s __ ~ annr .... . A miStr{= ~ ' object{.~ renderin~ ~= nave the u- ~. the -~' ~Uper. =%.-"cf C°mmonwe'~-''=~paDle of (1979) ~/, 541 ~,_ ~lth v. v_. an · · sa4 A.2d 3o.~unn, 271 o~, 385-86 Commonwealth v - . . · aa~ZDerg, 358 Pa. Sue (1986). A CUrative ~ P r. 39, 47, 516 - - -' - mnstruce~_ _ a.2d 758 -'~ Where a bel{~ ~. ~ not suffic realis~:_ ,, -~ chat the 4.._ ~ ~o avoid ~- at 49 ~u~ follo . w it · Thus. 4. ~ , 516 A.2d at 763· is "not (~979), t~e-~Sylvan~a Su r ' ' °mm°nwe~2th v. Wi2son, 485 Pa 409, 402 A.2 required where ~- P eme Court held ~- · d 1027 uae Prosecutor referee= · una= a new trial was ~=u in an Opening Statement to w ns°etc~/hoj~afto~r presented in ~, lthstandlng a CUrative =_ _ o g od une reference from t- · ~nS~ruct~on cautionin, ~.._ ~ and heir minds an= . = 3urors to dismiss deliberations· u no~ let it enter into their 7 94-0500 CRIMINAL TERM A lication of Laws to Facts In the present robbery case, where the sole issue was whether Defendant was the perpetrator, where the victim was unable to identify Defendant as the perpetrator, where the only identification testimony was that of a driver who joined briefly in the perpetrator,s pursuit, and where Defendant,s defense was that of alibi, supported by two family members, information in the prosecution,s opening remarks to the effect that Defendant,s sister was the get-away driver and had named Defendant as the robber was highly damaging to the defense. This information, in the Court,S view, was of such a prejudicial nature that it was not realistic to expect the jury to divest itself of its effects in response to a cautionary instruction that was given after no testimony was presented to support the statements. The remarks had "the unavoidable effect of rendering the jury incapable of an objective judgment... Upon careful review of the record, it is believed that the Defendant, under the circumstances peculiar to this case and without regard to the existence of good faith on the part of counsel, did not receive a fair trial. For this reason, the following Order will be entered: 94-0500 CRIMINAL TERM QRDER OF COURT AND NOW, this ~O~t day of September, 1994, upon consideration of Defendant,s post-sentence motion for a new trial, and for the reasons stated in the accompanying Opinion, the motion is GRANTED. BY THE COURT, _ s/ J- Wesle Oler Jr. J- Wesley Oler, Jr., j. William I. Gabig, Esq. Senior Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender