Commonwealth v. Barnes

JOHNSON, Judge.

Stephen Barnes was convicted of robbery, criminal conspiracy and possessing instruments of crime. The Honorable Marvin R. Halbert heard and denied post-trial motions. Judge Halbert sentenced Barnes to serve an aggregate term of fifteen to thirty years’ imprisonment.

Barnes appealed, raising numerous allegations of trial court error. The appeal was submitted on briefs. Prior to a decision, this court ordered argument of the case before the court en banc to consider whether the Career Criminal Program of the Philadelphia County District Attorney’s Office was constitutionally valid despite the Commonwealth’s failure to demonstrate the existence of established guidelines governing inclusion in the program and that appellant fell within any such guidelines.

*329This appeal was scheduled along with Commonwealth v. Simmons, 388 Pa.Super. 271, 565 A.2d 481 (1989), to consider the issue presented in both appeals relating to the Career Criminal Program. In deciding the Simmons appeal, we concluded that the defendant’s right to a non-jury trial under Pa.R.Crim.P. 1101 had not been violated and that the trial judge had not abused his discretion in rejecting a motion for recusal. We further concluded that the broad issue of the viability of the Career Criminal Program, and the review and evaluation of procedural program guidelines is beyond the appellate jurisdiction of this court. Commonwealth v. Simmons, supra.

On this appeal, Barnes challenges his trial in the Career Criminal Program, conceding that the program itself is constitutionally permissible. Barnes claims that he was entitled to a hearing at which the Commonwealth would have been required to provide the criteria governing assignments to the program and to prove that defendant met the criteria for inclusion. In fact, Barnes did have a hearing on the career criminal aspect of his omnibus pre-trial motion dated October 2, 1986. N.T., dated October 2, 1986, pages 5 — 23. Judge Halbert found no prejudice to defendant Barnes as a result of his inclusion in the program. At argument on post-verdict motions, counsel for Barnes was again invited by the court to submit evidence of prejudice arising from Barnes’ inclusion in the Career Criminal Program. Court-appointed counsel, Van Pleet Wilson, responded thusly:

Mr. Wilson: The prejudice is that, frankly, there are a lot of judges who are quite irresponsible and who don’t sentence properly and we were deprived of our right to go in front of those irresponsible judges. That sounds cynical, but that’s how it is in this city.
The Court: We are not talking about the sentencing posture. We are talking about acting as a referee, as I did, at the trial level. What was the prejudice?
*330Mr. Wilson: Your Honor, again, I don’t see any prejudice to the factual determination of guilt or innocence. I think you conducted a very fair trial.

N.T. dated February 18, 1987, page 9.

In the Argument section of Barnes’ Brief for Appellant, he presents a consolidation of his first five questions on appeal as follows:

THE PLACEMENT OF APPELLANT INTO THE CAREER CRIMINAL PROGRAM WITHOUT A HEARING WAS ERROR, THE DENIAL OF APPELLANT’S REQUEST FOR A HEARING WAS ERROR, THE REFUSAL OF THE PROSECUTOR TO DIVULGE THE CAREER CRIMINAL GUIDELINES WAS ERROR AND A VIOLATION OF THE TRIAL JUDGE’S ORDER TO DO SO, THE PROCEDURAL APPLICATION OF THE CAREER CRIMINAL PROGRAM IN THE INSTANT CASE WAS ERROR AND ALL OF THE ABOVE WERE VIOLATIONS OF THE CONSTITUTION, DUE PROCESS OF THE LAW AND EQUAL PROTECTION OF THE LAW.

Brief for Appellant, page 7.

Both at the hearing, pre-trial, on Barnes’ motion to declare the Career Criminal Program null and void and at the argument upon post-trial motions, the distinguished trial judge invited Barnes’ counsel to submit evidence of the prejudice suffered by Barnes as a result of his inclusion in the program. The only prejudice apparent from the record is, in the words of Barnes’ counsel, denial of the right to appear before a “quite irresponsible” judge who would not sentence Barnes “properly.” Our careful review of the record does not disclose any error by Judge Halbert in denying both the pro se Motion to Delcare [sic] the Career Criminal Program Null and Void filed September 19, 1986 and the Motion to Exclude Petitioner from the Career Criminal Program and Challenge to Same filed along with the Post-Verdict Motions on February 26, 1987. Since we have determined, in Commonwealth v. Simmons, supra, that the review and evaluation of the program guidelines is *331beyond our appellate review powers, we reject the first five questions presented on this appeal as subsumed in appellant’s first argument.

At Questions 6 through 9, Argument Section II, Barnes argues that Judge Halbert committed error in denying Barnes’ Petition to Reconsider Sentence and that the sentences are contrary to law. To the extent that we are asked to review the discretionary aspects of the sentence, we decline to do so. Barnes has not included in his brief a statement of reasons requiring review, and the Commonwealth has properly objected. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Moreover, the relief Barnes seeks — sentencing within the guideline range — has been removed from our consideration on this sentence by our supreme court’s decision in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987).

On the sentencing, we commend Judge Halbert for bringing to our attention the inadvertent sentencing of Barnes for two inchoate crimes, conspiracy and possession of an instrument of crime. Prior to February 9, 1987, a person could not be convicted of more than one offense defined by Chapter 9 of the Crimes Code for conduct designed to commit or to culminate in the commission of the same crime. 18 Pa.C.S. § 906. We therefore will accept Judge Halbert’s request, as joined in by Barnes, and vacate the sentence imposed on the possessing instruments of crime charge, while permitting the sentence imposed on the conspiracy charge to remain. Commonwealth v. Krysiak, 369 Pa.Super. 293, 535 A.2d 165 (1987), appeal denied, 518 Pa. 637, 542 A.2d 1366.

At Questions 10 through 12, Argument Section III, Barnes contends the evidence was insufficient and the verdicts were contrary to law and the weight of the evidence. Although this case involves an indoor robbery wherein all the criminal acts occurred inside the victim’s home, Barnes seeks to rely upon contradictions between weather bureau reports and the complainant’s testimony concerning outside *332weather conditions to argue that the victim’s testimony-should have been excluded. Barnes cites no authority for this proposition and we have not been referred to any. Our review of the trial testimony convinces us that the evidence at trial and the reasonable inferences deducible therefrom more than sufficiently support Barnes’ convictions.

Barnes raises additional issues in his Brief for Appellant, relating to (a) the refusal to charge on the lesser included offense of assault, (b) Pa.R.Crim.P. 1100, (c) voir dire, (d) the denial of severance, and (e) denial of pre-trial motions relating to the location of the parties in the courtroom and the order in which the parties opened and closed to the jury. There was no argument or brief filed before Judge Halbert on any of these issues and they are waived. Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983).

We find no merit to the contentions raised by Barnes on this appeal. The convictions for robbery, criminal conspiracy and possessing instruments of crime are affirmed. The judgments of sentence for robbery (10 to 20 years’ imprisonment) and conspiracy (5 to 10 years’ imprisonment, to run consecutively) are both affirmed. The judgment of sentence for possessing instruments of crime (2 to 5 years’ imprisonment, to run concurrently) is vacated. Jurisdiction is relinquished.

DEL SOLE, J., files a concurring opinion. BECK, J., files a concurring statement. TAMILIA, J., concurs in the result. POPOVICH, J., files a concurring and dissenting opinion.