Sufficiency of Evidence

and Probable Cause

Sufficiency of Evidence and Probable Cause

Comm. v. Gorman, 2018 PA Super 73 (Mar. 28, 2018)

This was an appeal out of Allegheny County.  Gorman proceeded to a bench trial on three charges: theft by unlawful taking, receiving stolen property, and misapplication of entrusted property.  The long-and-short of the evidence behind these charges was that Gorman, a long-time VFW member who operated the honor guard out of two VFW posts, was using donations he’d receive (be it from funeral directors, family, or others) for unrelated expenses to the honor guard.  One example was a water bed, and another was a membership at a country club.  

The trial court found Gorman guilty on all three counts and ordered restitution in an amount of $44,312.93.  On appeal, particularly attacking the theft charge, Gorman argued that he could not be held criminally liable for stealing $17,183 from the VFW when there was only a total of $7,450 in checks “made payable to the VFW,” which were deposited in the honor guard account.  Pointing to the evidence adduced at trial, the Superior Court said this in response:

Appellant’s argument is meritless.  The Commonwealth’s evidence demonstrated that the [honor guard] account was opened by [Gorman] when he began running the honor guard under the auspices of the VFW Post 1810.  [Gorman] was informed that the honor guard must be ‘attached’ to a [Veterans Service Organization], such as a VFW, and that any donations received by the honor guard were the property of that organization.  Accordingly, any donations deposited into the [honor guard] account—whether made payable to the VFW, the honor guard . . . or to [Gorman] personally—constituted property of the VFW Post 1810.  This fact explains why the amount [Gorman] was charged with stealing from the VFW exceeded the amount of the checks made payable just to that organization.

A running theme of Gorman’s defense was that when he’d receive donations from others, he was handling and using the donations as intended by the donors, thus he was neither stealing nor misappropriating entrusted funds.  But to this argument the Superior Court noted that there was never any evidence that the donors intended that Gorman spend the money on personal items (e.g., a water bed).  Moreover, the Superior Court stated,

[Gorman] was not a fiduciary of the donors.  Instead, by acting as the administrator of the honor guard, which was operated under the auspices of the American Legion Post 935 and the VFW Post 1810, [Gorman] was a fiduciary of those [Veterans Service Organizations].  Thus, any donations [Gorman] received, regardless of the payee set forth on the checks, was the property of the Veterans Service Organization under which his honor guard was operating when the donation was made.

Therefore, primarily for these reasons, the Superior Court upheld Gorman’s convictions.

 

 

Comm. v. Calabrese, 2018 PA Super 81 (Apr. 6, 2018)

This was an appeal out of Allegheny County.  Calabrese had been charged with DUI and a summary traffic offense under 75 Pa.C.S. § 3310 (Following too closely). The traffic offense is what caused the police to stop Calabrese’s car.  The officer indicated that he witnessed Calabrese driving at a high rate of speed, almost striking the vehicle in front of him.  When the officer approached the car, however, he detected a strong odor of alcohol from the vehicle.

Calabrese ultimately challenged the stop of his vehicle as a stop unsupported by probable cause, and a suppression hearing was held on the issue.  At that time, having due regard for the language of the statute defining the offense of Following Too Closely, Calabrese argued the following:

1) The facts established that Calabrese “was in complete control of his vehicle”;

2) The evidence presented “focused solely on the distance” observed between Calabrese’s car and the other vehicle without regard to “traffic conditions at the time, the weather conditions, or the condition of” the road; and

3) The officer’s testimony about the speed of Calabrese’s vehicle was insufficient to serve as a basis for a violation, and could not be factored into a probable-cause analysis, because it was so generic and did not articulate any specific facts to even approximate speed.

Importantly, all of this was relevant, Calabrese argued, given the language of the statute, which reads:

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the conditions of the highway.

Needless to say, all of this was unconvincing to the Superior Court.  The Superior Court reasoned that they “have previously determined that a police officer’s observations, standing alone, are legally sufficient to stop a vehicle for a violation of Section 3310(a).”  And here, given the officer’s testimony that he observed Calabrese driving “at a high rate of speed”; he “got on the tail of another vehicle in front of him”; and the officer thought “[Calabrese’s] vehicle was going to hit the back of the other vehicle,” “[t]hat’s how close it came,” these observations were sufficient, the Superior Court said, for the officer to conclude that Calabrese “was following another vehicle more closely than was reasonable and prudent.”  

It was of no consequence that Calabrese had not received a speeding violation in this case.  The Superior Court noted that “[t]he plain language of the Motor Vehicle Code requires a driver to have due regard for the speed of the vehicles and the traffic of the highway.”  Thus, the trial court did not err when considering testimony about Calabrese’s speed when deciding whether there was probable cause to stop for a violation of Section 3310.