Petition for Writ of Certiorari — Wax v. Pennsylvania

Supreme Court, U.S.

& PILED

No.

i ocr @ i

| JOSEPH F. SPANIOL, JR,

IN THE CLERK

SUPREME COURT OF THE UNITED STATES--- - -

October Term, 1990

COMMONWEALTH OF PENNSYLVANIA,

Respondent,

-against-

MATTHEW C. WAX.

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

PENNSYLVANIA EASTERN DISTRICT

Alan M. Dershowitz

~ Jack Zaremski

232 Brattle Street

Cambridge, MA 02138

(617) 661-1965

Of Counsel:

Steven J. Cooperstein

BROOKMAN, ROSENBERG,

BROWN & SANDLER

230 South Broad Street

Philadelphia, PA 19102

(215) 546-2660

PACKARD PRESS / LEGAL DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000

QUESTION PRESENTED FOR REVIEW

Whether Petitioner was deprived of his sixth amend-

ment right to be informed of the charges against him

and his fourteenth amendment right to due process of

law, when, having been charged with only one count of

attempted theft by deception, evidence was admitted at

trial tending to show that he might have been guilty of

arson.

ake

TABLE OF CONTENTS

- Page

QUESTION PRESENTED FOR REVIEW ....... i

py.) PF -2e Bee). ay i. 5) ne ii

TABLE OF AUTHORITIES ...... cc cccccccccecs lil

IPE o's 6 oka Kh ks aes cessnncescan 1

JURISDICTION OF THE COURT.............. 1-2

CONSTITUTIONAL PROVISIONS.............. 2

SEATEMEN: OF Tit CASE ..... cc ccc cscceess 3-5

REASON FOR GRANTING THE WRIT:

PETITIONER’S SIXTH AND FOURTEENTH

AMENDMENT RIGHTS WERE VIOLATED

WHEN HE WAS CHARGED WITH ONLY

ONE COUNT OF ATTEMPTED THEFT BY

DECEPTION YET WAS FORCED TO CON-

FRONT EVIDENCE SUBMITTED TO THE

JURY THAT HE HAD COMMITTED THE

CREE SO FAIRIES oo cence eeceneesnnseans 5-9

SEM scot sn bawe canescens bawevenenes 10

APPENDIX:

Commonwealth v. Wax, 571 A.2d 386 (Pa. Super.

PE A 4544460564 640 604K dR ORR A-1 - A-14

ll

TABLE OF AUTHORITIES

Cases: ; Page

Cole v. Arkansas, 333 U.S. 196 (1948)........... 5

Commonwealth v. Levin, 417 N.E. 2d 440 (Mass.

PCN So. eC kk Get edbenee eabace ede ces 8,9

DeJonge v. Oregon, 299 U.S. 353, 362 (1937)..... 7

Dunn v. United States, 442 U.S. 100 (1979)...... 9

BOS GE, Soe UG. 2S7 CUDSB) os. wo cw cecesacss 6

McGuire v. Estelle, 902 F.2d 744 (9th Cir. 1990)..7, 8

Menzies v. Procunier, 743 F.2d 281 (Sth Cir. 1984) 8

Russell v. United States, 369 U.S. 749 (1962)..... 6

Schmuck v. U.S., 109 S.Ct. 1443 (1989).......... 5

State v. Woodmansee, 205 A.2d 407 (Vt. 1964).... 6

Stirone v. United States, 361 U.S. 212 (1960).... 7

United States v. Mills, 32 U.S. 138 (1833) ....... 6

United States v. Sanchez, 508 F.2d 388 (Sth Cir.

1975), cert. denied, 423 U.S. 827 (1975) ..... 6

United States v. Simmons, 96 U.S. 360 (1877).... 6

Watson v. Jago, 558 F.2d 330 (6th Cir. 1977)..... 7

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amendment VI............ passim

U.S. Constitution, Amendment XIV,

SE a ee passim

STATUTES

al, 0) rr ree 2

ili

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

COMMONWEALTH OF PENNSYLVANIA,

Respondent,

-against-

MATTHEW C. WAX,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

PENNSYLVANIA EASTERN DISTRICT

OPINIONS BELOW

The trial court issued an unpublished opinion in

support of its denial of post-verdict motions. Common-

wealth v. Matthew C. Wax, No. 981, February Term,

1985 (Philadelphia Court of Common Pleas filed

1/31/89).

The Superior Court of Pennsylvania affirmed the

Petitioner’s judgment of sentence. Commonwealth v.

Wax, 571 A.2d 386 (Pa. Super. 1990).

The Supreme Court of Pennsylvania denied without

opinion Petitioner’s petition for allowance of appeal.

JURISDICTION OF THE COURT

The judgment of the Supreme Court of Pennsylva-

nia was entered on August 16, 1990. That Ccurt denied

a petition for allowance of appeal by order dated August

13, 1990.

2

This Court has jurisdiction to consider this case

pursuant to 28 U.S.C. Sec. 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment VI:

In ail criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have

been committed, which district shall have been previ-

ously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

U.S. Constitution, Amendment XIV, Section 1:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges and immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

3

STATEMENT OF THE CASE

Introduction

After an extensive investigation, the Common-

wealth of Pennsylvania charged Petitioner with only one

crime arising out of Petitioner’s submission of an insur:

ance claim for office furniture iost in a fire — attempted

theft by deception in excess of $2,000. At trial, however,

the prosecutor, over the objections of defense counsel,

also attempted to prove that Petitioner was guilty of

arson in connection with the fire. The prosecutor repeat-

edly introduced highly prejudicial evidence that Peti-

tioner deliberately set the blaze which damaged his

office. Because Petitioner’s conviction may have been

based on the proof offered by the prosecution that

Petitioner was guilty of arson, the charge against Peti-

tioner was unconstitutionally broadened, and the con-

viction against him cannot stand.

The fundamental fairness of the criminal justice

system depends on giving defendants the opportunity to

present an effective defense to the crimes for which they

are charged. If overzealous prosecutors are allowed to

broaden the possible bases for conviction by attempting

to prove uncharged crimes, the fairness of the system is

jeopardized.

Chronology

In March of 1983, Petitioner was a tenant of a

seventh floor office at 220 South 16th Street in Philadel-

phia. On March 22, 1983, the office was ravaged by fire.

On March 23, 1983, Petitioner contacted his insurer, the

Aetna Casualty and Surety Company (“Aetna”), about

the fire. In October of 1983, Petitioner submitted to

Aetna a sworn proof-of-loss form, listing the items he lost

as a result of the fire. Petitioner estimated the total value

of those items at slightly over $32,000.00. Aetna denied

Petitioner’s claim in its entirety.

4

On November 23, 1984, the Commonwealth of

Pennsylvania issued an arrest warrant against Petitioner

and thereby initiated this prosecution. After a series of

continuances, the case was called for trial on November

17, 1987. The Commonwealth moved for trial on a single

bill, charging attempted theft by deception. Despite

defense counsel's pretrial objection to the Common-

wealth’s presentation of evidence at trial related to the

uncharged allegation of arson (R. 11/17/87, 30a-33a),

the prosecutor set out from the onset to force the jury to

focus on that uncharged crime. He alleged in his open-

ing argument that while Petitioner had not been

charged with arson, Petitioner had carefully planned

and was responsible for the fire that resulted in his loss

of property (R. 11/18/87, 64a-65a). Defense counsel in

his opening statement attempted to shift the jury’s focus

from the prosecutor’s allegation that Petitioner was

guilty of arson (R. 11/18/87, 68a-69a). The prosecutor,

however, determined to prove that Petitioner was the

perpetrator of arson, offered proof that Petitioner had

motive to and did intentionally set his office on fire. He

presented the testimony of John D. Brinkmann, a lawyer

who had deposed Petitioner on behalf of Aetna. Mr.

Brinkmann testified in part that Petitioner owed

$50,000.00 to an Atlantic City casino at the time of the

fire, a debt that Petitioner disputed (R. 11/19/87, 127a-

133a). The Commonwealth then linked its proffer that

Petitioner had motive to commit arson with its allegation

that Petitioner’s arson was the cause of the blaze, by

summoning Fire Marshall Edward Brooke to testify that

the fire had been intentionally set (R. 11/20/87, 305a).

The prosecutor then presented the testimony of Henry

Alston, a buildings maintenance man, who testified that

he had seen Petitioner remove certain items from his

office during the weeks before the fire (R. 11/19/87,

243a-244a). The prosecutor's focus on arson compelled

defense counsel to explain to the jury in his summation

5

that the allegation against Petitioner of arson was un-

founded, since Petitioner “wasn’t there” when the fire

took place.

On November 24, 1987, the jury returned a verdict

of guilty on the one count of attempted theft by decep-

tion. Petitioner timely appealed to the Superior Court of

Pennsylvania, which affirmed the conviction on January

16, 1990. The Superior Court denied Petitioner’s Appli-

cation for Reargument on March 19, 1990. The Su-

preme Court of Pennsylvania rejected without opinion

Petitioner’s petition for allowance of appeal on August

13, 1990.

REASON FOR GRANTING THE WRIT

PETITIONER’S SIXTH AND FOURTEENTH AMEND-

MENT RIGHTS WERE VIOLATED WHEN, HAVING

BEEN CHARGED WITH ONLY ONE COUNT OF AT-

TEMPTED THEFT BY DECEPTION, HE WAS FORCED

TO CONFRONT EVIDENCE SUBMITTED TQ TEE

JURY TENDING TO PROVE THAT HE HAD COMMIT-

TED THE CRIME OF ARSON.

“It is an ancient doctrine of both the common law

and of our Constitution that a defendant cannot be held

to answer a charge not contained in the indictment

brought against him. This stricture is based at least in

part on the right of the defendant to notice of the charge

brought against him.” Schmuck v. U.S., 109 S.Ct. 1443,

1451 (1989) (citations omitted). While the guarantee of

& grand jury indictment does not apply to the states, the

right of the defendant to be apprised of the charges

against him is fully applicabie to state proceedings: “No

principle of procedural due process is more clearly

established than that notice of the specific charge, and a

chance to be heard in a trial of the issues raised by that

charge, if desired, are among the constitutional rights of

every accused in a criminal proceeding in all courts,

state or federal.” Cole v. Arkansas, 333 U.S. 196, 201

6

(1948). Thus, it is fundamental to the notion of due

process that a defendant not be subjected to trial and

conviction on charges of which he is not apprised. One’s

“right to reasonable notice of a charge against [one], and

an opportunity to be heard in [one’s own] defense — a

right to [one’s] day in court — are basic to our system of

jurisprudence.” Jn re Oliver, 333 U.S. 257, 273 (1948).

The purposes of the sixth and fourteenth amend-

ment right of a defendant to be informed of the nature

and cause of accusations against him are twofold: first,

to apprise the defendant of what he or she must be

prepared to defend against, and second, to protect the

defendant against double jeopardy. See United States v.

Sanchez, 508 F. 2d 388, 395 (Sth Cir. 1975), cert denied,

423 U.S. 827 (1975). To guarantee the defendant the

opportunity to present an effective defense, “the offense

must be set forth with clearness, and all necessary

certainty, to apprise the accused of the crime for which

he stands charged.” United States v. Mills, 32 U.S. 138,

142 (1833). Any indictment or information “not framed

to apprise the defendant ‘with reasonable certainty’, of

the nature of the accusation against him ... is defec-

tive.” Russell v. United States, 369 U.S. 749, 765 (1962)

(quoting United States v. Simmons, 96 U.S. 360, 362

(1877)).

Furthermore, the responsibility for accusing a de-

fendant with sufficient specificity so as to enable the

accused to adequately and intelligently prepare a de-

fense is entirely on the prosecutor. “It is not unjust to

hold that authority strictly accountable for substantive

shortcomings in the pleadings.” State v. Woodmansee,

205 A.2d 407, 409 (Vt. 1964). Indeed, “[t]o transmute

the test to a subjective issue of the respondent’s under-

standing of a defective charge wouid place the constitu-

tional purpose in danger. Authoritarian caprice, against

which the whole structure of constitutional law was

erected as a barrier, could begin again to outflank our

objectives of justice and fair dealing.“ Jd. Clearly, a state

7

trial court violates the right to notice of charges levied by

allowing the prosecutor to seek conviction on a charge

other than the charges of which the defendant has been

given fair notice, and a prosecutor’s “constructive

amendment” at trial of the charges “unquestionably

constitute[s] a denial of due process.” Watson v. Jago,

558 F.2d 330, 338 (6th Cir. 1977), citing DeJonge v.

Oregon, 299 U.S. 353, 362 (1937).

However, not only is the defense impaired when the

prosecution introduces evidence of an uncharged crime,

but the jury may also be misled, condemning the

defendant for a crime other than the one for which he or

she was actually charged. Where evidence of a crime for

which a defendant has not been charged is allowed

repeatedly to be introduced, there is substantial danger

that defendant will be seriously prejudiced and perhaps

convicted of the uncharged crime. See Stirone v. United

States, 361 U.S. 212, 217 (1960): “[I]t cannot be said

with certainty that with a new basis for conviction

added, [the defendant] was convicted solely on the

charge made in the indictment the grand jury returned.”

Id.

Various federal and state appellate opinions directly

reinforce the serious nature of petitioner’s contentions,

and demonstrate the extent to which the genre of

prosec'itorial abuse that is at issue in this case is

prevalent throughout the country. In McGuire v. Estelle,

902 F.2d 749 (9th Cir. 1990), the defendant seeking

habeas corpus relief had been convicted of second

degree murder of his six-month-old daughter. At trial,

the prosecution had introduced evidence that the baby

had been physically abused in the past, but the defen-

dant had not been charged with the earlier abuse. A

ninth circuit panel reversed the conviction, holding that

the defendant was denied a fundamentally fair trial

because of the “irrelevant, highly prejudicial” evidence

offered at trial of prior abuse, Jd. at 753, and the

possibility that the jury could have found the defendant

8

guilty of the charged offense on the basis of the “un-

proven characterization of [the] appellant as a child

abuser.” Id. at 754.

In Menzies v. Procunier, 743 F.2d 281 (Sth Cir.

1984), the defendant seeking habeas corpus relief had

been convicted of aggravated rape. During the trial, the

prosecution first introduced evidence that the defendant

had committed other crimes such as the threatening of

other victims that he had allegedly raped. The prosecu-

tion also introduced evidence that the defendant had

participated in a scheme to suborn perjury. The court

held that this evidence of other crimes for which the

defendant was not charged constituted “extraneous con-

siderations which unfairly prejudiced the jury against

the Petitioner and, perhaps more importantly, crippled

the ability of the Petitioner’s lawyer to present an effec-

tive defense on his behalf.” Jd. at 289. The court

concluded that the introduction of this evidence denied

the defendant his right to a fair trial.

A remarkably similar case to the present one arose in

the Commonwealth of Massachusetts. In Common-

wealth v. Levin, 417 N.E. 2d 440 (Mass. App. 1981), the

defendants were charged, like Petitioner, with various

kinds of fraud relating to an insurance policy. The

insurance policy in Levin covered the life of the defen-

dants’ business partner, who was gunned down by an

unknown assailant shortly after the defendants obtained

the policy. Jd. at 445.

The Massachusetts Appeals Court ruled that “all

defendants were irreparably prejudiced by the introduc-

tion of [the partner’s] homicide.” Jd. at 449. Such

prejudice was deemed to be “almost overwhelming.” Jd.

at 450. This was true even though, unlike here, the trial

judge twice attempted to issue an instruction to the jury

not to consider the defendants’ guilt related to the

homicide. Despite-the judge’s instruction, the Appeals

Court reasoned that “the damage had been done.” Jd. at

449. The Court ruled that, although the jury perhaps

9

should have been allowed to learn that the business

partner had died, “it was prejudicial error to permit

evidence of [the partner’s] homicide particularly where

the Commonwealth was not required to disclose and the

defendants were not permitted to discover and rebut the

evidence, if any, which the Commonwealth might have

to connect them to the homicide.” Jd. at 450.

The extrinsic evidence of other crimes at issue in

Petitioner’s case presents an equally overwhelming sce-

nario of prejudice. The prosecutor’s allegation that Peti-

tioner committed azson suggested to the jury that even a

conviction on the attempted theft charge would be a

lenient punishment. It is indeed easy to see the extent to

which the prosecutor’s repeated allusions to the ex-

tremely serious crime of arson could have overshadowed

the less dramatic charge of theft by deception, and

resulted in the conviction of Petitioner for the uncharged

crime.

Thus, the conviction of Petitioner, which may have

been based on the proof of arson offered by the prose-

cution, must be reversed. Since Petitioner was given no

notice in the charges issued against him that the Com-

monwealth of Pennsylvania would offer proof that he

was guilty of arson, the introduction of evidence of the

crime of arson violated Petitioner’s sixth and fourteenth

amendment rights. In sum, the conviction of Petitioner

on the only charge present in the actual information,

that of attempting theft by deception, leaves open the

possibility that Petitioner was convicted of a charge that

was never made. Hence, the decision of the Superior

Court of Pennsylvania affirming the judgment of con-

viction of Petitioner was in error. Indeed “[t]o uphold a

conviction on a charge that was neither alleged in an

indictment nor [formally] presented to a jury at trial

offends the most basic notions of due process.” Dunn v.

United States, 442 U.S. 100, 106 (1979).

10

CONCLUSION

The procedures implemented by the Common-

wealth of Pennsylvania in this case encourage the

government to obfuscate constitutional safeguards of

the rights of defendants, and have resulted in the

present unjust conviction..The United States Supreme

Court should grant certiorari in this case not only to

address the wrong that was committed against Peti-

tioner, but also to safeguard the criminal justice system

from further erosion of the right of defendants to be

apprised of the charges brought against them.

Respectfully submitted,

Alan M. Dershowitz _

Qe“ r

Jack Zaremski

232 Brattle Street

Cambridge, MA 02138

(617) 661-1965

Of Counsel:

Steven J. Cooperstein

BROOKMAN, ROSENBERG,

BROWN & SANDLER

230 South Broad Street

Philadelphia, PA 19102

(215) 546-2660

APPENDIX

S Lae

ne

ce

—-

-

COMMONWEALTH of Pennsylvania

Ve

Matthew C. WAX, Appellant,

Superior Court of Pennsylvania

Argued May 25, 1989.

Filed Jan. 16, 1990.

Reargument Denied March 16, 1990.

Defendant was convicted in the Court of Common

Pleas, Philadelphia County, Criminal Division, No. 981

Feb. Term, 1985, Waikins, J., of attempted theft by

deception, and he appealed. The Superior Court, No.

01280 Philadelphia 1988, Beck, J., held that: (1) defen-

dant failed to show that counsel was ineffective, and (2)

trail court did not abuse its discretion in imposing

sentence despite defendant’s contention that trial court

considered his family background as aggravating factor.

Affirmed.

1. Indictment and Information 161(5)

Amendment to bill charging attempted theft by

deception did not prejudice defendant and was thus

properly allowed; property allegedly stolen was originally

identified as having value of $32,000 and amendment

valued property simply as amount in excess of $2,000,

which was amount required by statute. 18 Pa.C.S.A.

§3903(a); Rules Crim.Proc., Rule 229, 42 Pa.C.S.A.

2. Criminal Law 641.13(6)

Defendant failed to show that counsel was ineffec-

tive in not objecting to introduction of evidence of

defendant’s indebtedness when evidence of specific

debts was material to defendant’s motive in prosecution

for attempted theft by deception. 18 Pa.C.S.A. §3903(a);

Rules Crim.Proc., Rule 229, 42 Pa.C.S.A.

A-1

A-2

3. Criminal Law 342, 347

Evidence of specific debts is admissible if jury may

clearly draw inference that financial difficulties of de-

fendant were material to his motive or state of mind in

committing crime. 18 Pa.C.S.A. §3903(a); Rules Crim.

Proc., Rule 229, 42 Pa.C.S.A.

4. Criminal Law 338(7), 342

Evidence of defendant’s specific and significant

financial problems, together with his affluent lifestyle,

was not unduly prejudicial, and, thus, was admissible;

from evidence, jury could reasonably infer motive for

commission of theft by deception. 18 Pa.C.S.A.

§3903(a); Rules Crim.Proc., Rule 229, 42 Pa.C.S.A.

5. False Pretenses 41

Evidence of defendant’s ongoing negotiations with

building’s owners, his continued failure to pay rent, and

his consequent removal of property from offices, was

probative of defendant’s state of mind at time he filed his

insurance claim and was, thus, relevant to establish

attempted theft by deception. 18 Pa.C.S.A. §3903(a).

6. Criminal Law 641.13(6)

Defense counsel was not ineffective in failing to

object to prosecutor’s developing testimony about defen-

dant’s rent dispute with landlord where counsel used

same evidence to establish defense to charge of at-

tempted theft by deception. 18 Pa.C.S.A. §3903(a);

Rules Crim.Proc., Rule 229, 42 Pa.C.S.A.; U.S.C.A.

Const.Amend. 6.

7. Criminal Law 641.136)

Defendant failed to show that counsel was ineffec-

tive in not objecting to portion of testimony given by one

A-3

of defendant’s landlords, even if testimony was inadmis-

sible hearsay, where passing remark could not have had

adverse effect on outcome of prosecution for attempted

theft by deception. U.S.C.A. Const.Amend. 6.

8. Criminal Law 986.2(1)

Trial court did not abuse its discretion in imposing

sentence for attempted theft by deception, even if it

considered as aggravating factor defendant’s privileged -

background, characterized by defendant as “exem-

plary,” absent showing that defendant had a life-long

history of law-abiding conduct and demonstrated re-

morse and regret for instant crime. 42 Pa.C.S.A.

§9781(b); Rules App.Proc., Rule 2119(f), 42 Pa.C.S.A.

Steven J. Cooperstein, Philadelphia, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com.,

appellee.

Before BECK, JOHNSON and HOFFMAN, JJ.

BECK, Judge:

In a jury trial appellant Matthew Wax was convicted

of attempted theft by deception. The court imposed a

sentence of one-to-two years imprisonment and a

$15,000 fine. On appeal he challenges the effectiveness

of trial counsel for failure to preserve various claims of

trial error. Appellant also seeks leave to appeal the

discretionary aspects of his sentence. We conclude that

the issues he raises are without merit and, therefore, we

affirm.

Matthew Wax was a tenant in an office building in

Philadelphia where he maintained an entertainment

consulting business. On March 22, 1983, there was a

fire in appellant’s then-unoccupied two-room suite of

offices. The fire department was summoned and easily

extinguished the blaze. The fire officials examined,

photographed and secured the scene.

At the time of the fire, the Aetna Casualty and

Surety Company (Aetna) insured appellant’s office and

A-4

its contents for $35,000. Claiming a loss for equipment

and other valuables totalling in excess of $32,000, Wax

submitted a sworn proof of loss statement to Aetna.

Aetna disallowed the claim on the ground that it had

been falsified. The fabricated insurance claim formed

the basis for the prosecution in the trial court.

At trial the Commonwealth’s evidence showed that

on the date of the fire the premises had been practically

emptied and that none of the items claimed to have been

destroyed or damaged by the fire was present when the

firemen arrived.! In fact, the Commonwealth’s evidence

showed that prior to the fire appellant had removed

numerous items from his office, had fallen far behind in

his payment of rent, had incurred a number of other

debts and had apparently been beseiged by other finan-

cial difficulties.

With the aid of new counsel on appeal, appellant

asserts the ineffectiveness of trial counsel for: 1) failing

to preserve trial court error in permitting the Common-

wealth to amend the bill of information; 2) failing to

preserve trial court error in admitting evidence of appel-

lant’s financial condition at the time of the crime; 3)

failing to object to the prosecutor’s “course of conduct”

depicting appellant as a deceptive person; and 4) failing

to object to the introduction of hearsay evidence.

The standard by which this court must evaluate

claims of ineffective assistance of counsel is settled. The

effectiveness of trial counsel is presumed and appellant

bears the burden of rebutting that presumption. Com-

monwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053

(1988); Commonwealth v. Jones, 298 Pa.Super. 199, 444

A.2d 729 (1982). In order to overcome the presumption

appellant must show that the issue underlying the claim

of ineffectiveness had arguable merit; that the course of

1. Although the fire marshall concluded that the fire had been

intentionally set, neither appellant nor any other person has been

charged with arson in connection with the incident.

A-5

conduct chosen by counsel had no reasonable basis in

effectuating the client’s interesi, and that counsel’s

action or inaction operated to prejudice him. Common-

wealth v. Tavares, 382 Pa.Super. 317, 555 A.2d 199

(1989). Appellant has failed to meet his burden on each

of his ineffectiveness claims.

[1] Prior to the commencement of appellant’s jury

trial, the Commonwealth moved to amend the bill of

information charging appellant with attempted theft by

deception. Originally the bill identified the property

involved as having a value of $32,000. The amendment

resulted in the property being valued simply as “in an

amount in excess of $2,000”, i.e., the statutory require-

ment for a third degree felony. 18 Pa.Cons.Stat.Ann.

§3903(a) (Purdon 1983). Since the trial court properly

permitted amendment of the bill, trial counsel was not

ineffective for failing to pursue this claim of error.

Pa.R.Crim.P. 229 permits amendment to an infor-

mation for the description of “any property” provided

that the change does not create a different or additional

offense against which the accused must defend. Where

the defendant has not been prejudiced case law has

repeatedly held proper amendments to informations

which have not broadened or changed the charge or

which have not altered the nature or grade of the

offense. Commonwealth v. Stanley, 265 Pa.Super. 194,

401 A.2d 1166 (1979); Commonwealth v. Oates, 269 Pa.

Super. 157, 409 A.2d 112 (1979); Commonwealth v.

Womack, 307 Pa.Super. 396, 453 A.2d 642 (1982). This

case falls squarely within Rule 229 and the line of cases

permitting amendment.

Appellant was fully aware of the Commonwealth’s

proof not only through the original information but also

through a bill of particulars. The crime specified in the

amended information involved the same elements and

arose from the same factual situation as set forth in the

original information. See Commonwealth v. Womack,

A-6

supra. Appellant cannot assert that the amended infor-

mation undermined his defense or that he has been

prejudiced or surprised. The change in the information

from $32,000 to an amount in excess of $2,000 was

therefore a permissible amendment. We conclude that

the issue underlying his first ineffectiveness claim is

without arguable merit; therefore appellant’s argument

that his counsel was ineffective fails.

[2] Appellant next claims his counsel was ineffec-

tive because he failed to object when the prosecutor

introduced evidence of appellant’s indebtedness includ-

ing moneys he owed for rent on the office, for gambling

debts and for the purchase of a Mercedes which was

repossessed. He asserts this evidence should have been

excluded under the principles announced by the Penn-

sylyania Supreme Court in Commonwealth v. Haight,

514 Pa. 438, 525 A.2d 1199 (1987). In Haight, the

defendant was charged with burglary. During the trial

the Commonwealth was allowed to elicit testimony that

at the time the crime was committed the defendant was

unemployed and receiving welfare benefits. In uphold-

ing the Superior Court? the Supreme Court in Haight

concluded that evidence of indigency was irrelevant on

the question of whether the defendant committed the

burglary. Therefore the testimony relating to appellant’s

unemployment and receipt of welfare benefits had been

improperly admitted. 525 A.2d at 1200. Haight cannot

be construed as creating an absolute bar to the admis-

sion of all evidence of financial! difficulties.

Haight easily is distinguished from the instant case.

Here, evidence of appellant’s debts was specific and

substantial and from it the jury could infer appellant’s

motive or state of mind to commit a crime, especially

where the crime was strictly an economic one. More-

over, no general prejudice such as that present in

Haight can be asserted because evidence of the debts

2. 332 Pa.Super. 269, 481 A.2d 357 (1984).

A-7

clearly was not intended to stigmatize appellant on the

basis of his economic status. Since Haight does not

dictate the result appellant suggests, this court should

assess the admissibility of the disputed evidence under

traditional considerations of relevancy.

Keievant evidence is that which, either taken alone

or in connection with other evidence, tends to prove or

disprove some material issue in the case. Stated another

way, to establish relevancy we ask whether the evidence

sheds light upon or advances the inquiry in which the

fact-finder is involved. See, e.g., Commonwealth v. Wal-

zack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976);

Commonwealth v. Bellacchio, 296 Pa.Super. 468, 479,

442 A.2d 1147, 1152 (1982). If the evidence in question

is logically relevant it is admissible unless the trial court,

in its discretion, determines that its potential prejudicial

impact outweighs its probative value.

[3] In the instant case we hold that under the

totality of the circumstances the evidence of specific

debts may be introduced where the jury may clearly

draw an inference that the financial difficulties of the

defendant were material to his motive or state of mind in

committing a crime. We recognize that while evidence

of indebtedness or of other financial burdens may be

clearly probative of a possible motive to commit a crime

for monetary gain, we must also consider whether, on

the other side of the equation, the potential for prejudice

outweighs the obvious relevance of the proof. We are

sensitive to the fact that a blanket application of this

principle would “prove too much against too many” and

may encourage the Commonwealth to argue that a

“defendant [with] no apparent means of income. . . was

more likely to commit a crime for dollar gain”. State v.

Mathis, 47 N.J. 455, 471-472, 221 A.2d 529, 537-538

(1966). We do not hold that financial indebtedness is

always relevant. Instead we require a common sense

evaluation of the disputed evidence and an inquiry into

A-8

whether the probative vaiue of the evidence exceeds its

prejudicial impact.

With these general principles in mind, we consider

whether evidence of appellant’s indebtedness was prop-

erly admitted. In the instant case, proof of appellant’s

immediate financial liabilities was both specific and

substantial. Unlike Haight, the jury here was not asked

to speculate on a chain of inferences far too weak to be

probative. The Commonwealth showed that at the time

appellant filed his insurance claim his gambling debts

were roughly equal to the amount of money he sought

from the insurance company, that he was more than a

year behind in his rent, and that he had other trouble-

some money problems.* The appellant’s serious and

pressing financial difficulties accompanied by an afflu-

ent life-style can hardly be said to lack a logical connec-

tion to a crime which is committed solely for monetary

gain. See United States v. Reed, 639 F.2d 896, 907 (2d

Cir. 1981). The evidence was relevant to establish

appellant’s motive or state of mind in committing the

offense with which he was charged. See Commonwealth

v. Boyle, 470 Pa. 343, 368 A.2d 661, 669 (1977);

Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287,

291 (1976). Furthermore, the probative value of this

evidence clearly outweighed its prejudicial effect. The

evidence was not inherently prejudicial and did not raise

problems of stigma and unfairness such as those impli-

cated in Haight.

[4] We conclude that proof of appellant’s specific

and significant financial problems together with an

affluent lifestyle was evidence from which the jury

reasonably could infer a motive for the commission of

3. Appellant asserts further that in his own testimony he

established legitimate excuses for the debts he had accumulated.

Whether or not to believe him, of course, was a matter in the sole

province of the jury and does not determine the admissibility of the

disputed evidence. The weight the jury chose to assign to the

evidence of appellant’s financial difficulties was left to it alone.

A-9

the crime and was not unduly prejudicial. Therefore the

evidence was properly admitted and trial counsel was

not ineffective for failing to pursue this claim of error.

Appellant further argues that trial counsel was inef-

fective in failing to: (1) object to numerous questions

and arguments by the prosecutor; (2) object to the

introduction of certain evidence and (3) request a mis-

trial based on the cumulative impact of prosecutorial

improprieties.4

[S] In large part, appellant’s argument is that the

prosecutor acted improperly in developing testimony

about appellant’s rent dispute with his landlords. We

find appellant’s argument meritless. Evidence of appel-

lant’s ongoing negotiations with the building’s owners,

his continuing failure to pay the rent, and his conse-

quent removal of property from his suite of offices, was

all probative of appellant’s state of mind at the time he

filed his insurance claim. The Commonwealth’s proof

sought to establish that the property appellant claimed to

have lost in the fire was not present when the fire

occurred. The property had been removed by him prior

to the fire and the removal was part of an intent to

abandon the premises and neglect the outstanding rent

obligations. This series of inferences was clearly relevant

to establish the crime with which appellant was

4. The record does not support several of appellant’s claims of

prosecutorial overstepping and we can dispose of these summarily.

The prosecutor did not suggest that appellant had set the fire in his

office but repeatedly assured the court and the jury that it was the

Commonwealth’s theory that appellant had seized upon the fire as

an opportunity to attempt to defraud the insurance company. Nor

did the prosecutor intimate that a previous insurance claim col-

lected by appellant had been improper. In fact, the Commonwealth

argued that the prompt and full payment of appellant’s first,

legitimate claim inspired him to proceed with the false one. Trial

counsel cannot be ineffective for failing to object to wholly proper

conduct on the part of the prosecutor. Commonwealth v. Rawles,

501 Pa. 514, 462 A.2d 619 (1983).

A-10

charged. The weight. and credibility accorded the evi-

dence were matters entirely within the province of the

jury. Commonwealth v. Ogin, 373 Pa.Super. 116, 120-

22, 540 A.2d 549, 552 (1988) (en banc). Counsel was

not ineffective for failing to object to this evidence.

[6] Moreover, evidence of appellant’s disputes with

his landlords was both elicited and utilized by the

defense in developing a defense theory that the building

management had a vendetta against appellant. This

theory extended so far as to suggest that the landlords

“benefitted most” from the blaze and, indeed, may have

started it themselves. Since the evidence elicited by the

Commonwealth is the same evidence that the defense

used to establish its defense, it is clear that trial counsel

was not ineffective for failing to object to the prosecu-

tor’s developing testimony about appellant’s rent dispute

with the landlord. Cf’ Commonwealth v. Martin, 346

Pa.Super. 129, 499 A.2d 344 (1985); Commonwealth v.

Rawles, supra.

5. Appellant also claims that the prosecutor engaged in im-

proper conduct by attempting to establish that appellant had

instituted a number of lawsuits. The record fails to reveal any

intention on the part of the prosecutor to portray appellant as

deceitful based upon his involvement in litigation nor can we find a

prejudicial impact in this line of questioning.

Similarly, we cannot fairly characterize as prejudicial the

prosecutor’s questioning of appellant regarding his use of the

designation “p.c.” in some of his correspondences. The question

itself did not constitute error and, through it, appellant was allowed

the opportunity to explain his lack of intent to deceive anyone in the

use of the appellation “p.c.” Trial counsel is not obligated to pursue

a meritless claim.

Finally, appellant asserts that the prosecutor “poisoned” his

case by his attempts to question some of his numerous reputation

witnesses on the underlying bases for their opinion of appellant’s

reputation. The trial court sustained defense objections to any

questioning of the character witnesses regarding appellant’s finan-

cial status since their testimony exclusively went to his reputation

for truthfulness. Therefore, any questions in this area remained

unanswered. It is axiomatic that a new trial is not compelled by

A-11

[7] Appellant’s final claim of ineffectiveness con-

cerns trial counse!’s failure to object to a portion of the

testimony given by one of the building’s owners, Dr.

Herbert Kean. Specifically, appellant points to that part

of Dr. Kean’s testimony wherein he stated that he

instructed the maintenance staff to allow appellant to

continue to remove equipment from the premises in the

hopes of terminating appellant as a tenant. Kean stated

that the maintenance main in the building had told him

that appellant was removing property. Appellant now

argues that Kean’s testimony about what the mainte-

nance man told him was inadmissible hearsay and that

the failure of counsel to challenge it entitles him to a

new trial. This claim is baseless. Even assuming ar-

guendo the evidence was inadmissible hearsay®, the

evidentiary value of the testimony at issue was de

minimus. The Commonwealth’s proof that the property

claimed to have been lost in the fire was not in the office

at the time it occurred was based primarily on the fire

marshall’s testimony and photographs and peripherally

on the maintenance man’s observations. Dr. Kean as

well as the fire marshall were fully cross-examined at

every arguably irrelevant question or remark made. Commonwealth

v. Marker, 231 Pa.Super. 471, 331 A.2d 883 (1974). Furthermore,

the trial court instructed the jury that questions asked by counsel

are not evidence and that all evidence to which any objection is

sustained must be disregarded. Any potential harm was hereby

attenuated and cannot provide the basis for relief. Commonwealth v.

Lowry, 385 Pa.Super. 236, 560 A.2d 781, 785 (1989).

6. We are not convinced that the disputed testimony violated

the evidentiary rule against hearsay. The testimony at issue here

was offered not to prove the truth of the matter asserted therein, i.e.,

that appellant removed property from the premises, but merely to

explain Dr. Kean’s decision to inform the building personnel to

allow appellant to take what he wanted out of the building. Viewed

in this context, the testimony is not hearsay and was properly

admitted. See Commonwealth v. Heath, 319 Pa. Super. 319, 466

A.2d 178 (1983); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d

749 (1987).

A-12

trial by defense counsel. Dr. Kean’s passing remark in

his testimony could not have had an adverse effect on

the outcome of the proceedings. Therefore, appellant

has not met his burden in overcoming the presumption

of effectiveness to which trial counsel is entitled.

[8] Lastly, appellant challenges the discretionary

aspects of the sentence imposed by the trial court. We

note that, as required pursuant to Pa.R.A.P. 2119(f) and

the Supreme Court’s opinion in Commonwealth v. Tu-

ladziecki, 513 Pa. 508, 522 A.2d 17 (1987), appellant has

included in his brief a statement of the reasons relied

upon in seeking permission to appeal his sentence.

Therefore, we must decide whether appellant has raised

a “substantial question” regarding the appropriateness

of his sentence before we can allow the appeal. 42

Pa.Cons.Stat.Ann. $9781(b) (Purdon 1982). This judg-

ment must be made on a case by case basis. In the

instant case we conclude that a substantial question has

been raised because of appellant’s colorable ailegation

that the trial court considered impermissible factors in

sentencing him. Commonwealth v. Losch, 369 Pa.Super.

192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987).

The appellant maintains that the trial court improp-

erly considered his privileged background as an aggra-

vating factor. Furthermore, he argues that the trial court

relied on the erroneous assumption that appellant had

previously committed insurance fraud. While these

claims raise a colorable allegation that the trial court

relied on impermissible factors, careful examination of

the record reveals that appellant is not entitled to the

relief he seeks.

Appellant argues that the trial court erred in consid-

ering his “exemplary” family background as an aggra-

vating factor. If anything, appellant asserts the trial

court should have considered it as a mitigating factor. To

support his argument, appellant relies on Common-

wealth v. Lowe, 361 Pa.Super. 343, 522 A.2d 614 (1987).

The Lowe court held that a lifelong history of blameless,

A-13

law abiding conduct should be a mitigating factor in the

imposition of sentence where the misconduct is a wholly

isolated event and where the court is convinced that the

offender has experienced such shame and remorse that

he has already been partially punished.” We find that

Lowe is clearly distinguishable. See Commonwealth v.

Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). The

record does not reveal that appellant’s background dem-

onstrated a lifelong history of blameless and law abiding

conduct that the Lowe court contemplated. More impor-

tantly the record reveals that appellant experienced

none of the remorse and regret which figured so prom-

inently in the Lowe opinion.

Likewise we find no merit in appellant’s claim that

the trial court erroneously assumed that he had engaged

in other insurance fraud when imposing sentence. Ap-

pellant’s contention is based on the trial court’s remark

during the sentencing hearing that appellant had un-

dertaken to “become a professional at this sort of acti-

vity”. Careful reading of the sentencing hearing makes

clear that taken in context, this remark in no way

supports the conclusion that the trial court was improp-

erly converting appellant’s prior insurance claim into a

criminal episode. Instead, an overall reading of the

sentencing proceeding reveals that the judge was refer-

ring to appellant’s history of falling prey to excessive

greed and acquisitiveness.®

7. In the Lowe case, the appellant had served twenty eight

years in the Pennsylvania State Police and had attained the rank of

Sergeant. In addition, he entered a plea of guilty to the charges of

forgery and false reports with which he was charged.

8. Appellant incorrectly argues that the trial court could not

consistently find that his crime was founded upon greed and, at the

same time, have allowed in testimony of his financial difficulties as

evidence of motive. However these are not inconsistent concepts.

Greed is defined in Webster’s Dictionary as a “seifish desire to

acquire more than one needs or deserves”. It certainly is easy to

conceive of a situation where an individual is beseiged with debts

for items which are part of a lifestyle begotten by greed and who,

A-14

It is clear that in appellant’s case the trial court

considered only relevant and permissible factors in im-

posing the sentence it did. At the conclusion of a lengthy

sentencing hearing at which both sides were fully heard,

the trial judge articulated his reasons for imposing a

period of confinement in appellant’s case. Nothing ap-

pellant has argued persuades us that in doing so the trial

court abused his discretion and barring that we will not

substitute our judgment for that of the court below. See

Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d

207 (1985); see also Commonwealth v. Devers, 519 Pa.

88, 546 A.2d 12 (1988).°

Judgment of sentence is affirmed.

NOTES (Continued)

therefore, is motivated to use criminal means to eradicate those

liabilities.

9. Appellant’s additional claims regarding his sentence

amount to an argument that the trial court incorrectly weighed

various legitimate sentencing considerations and therefore imposed

a harsher sentence than was deserved. Absent a manifest abuse of

discretion, however, we will not disturb the trial court’s judgment in

this arena. See, e.g. Commonwealth v. Sanders, supra.

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