Com. v. Brown

• Decision Date: 28 January 1985
• Citation: 486 A.2d 441,336 Pa.Super. 628
• Parties: COMMONWEALTH of Pennsylvania v. Alan A. BROWN, Appellant.
• Court: Pennsylvania Superior Court

Page 441

486 A.2d 441

336 Pa.Super. 628

COMMONWEALTH of Pennsylvania v. Alan A. BROWN, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 17, 1984.

Filed Dec. 14, 1984.

Reargument Denied Jan. 28, 1985.

Irene H. Cotton, Philadelphia, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before WICKERSHAM, BROSKY and TAMILIA, JJ.

TAMILIA, Judge.

Appellant was arrested on June 23, 1980 and subsequently charged with attempted burglary, criminal conspiracy, possessing an instrument of crime and prohibited offensive weapons. On November 20 and 24, 1980, appellant, represented by a public defender, was tried along with co-defendant, Theodore Skalski, before the Honorable Judith J. Jamison, sitting without a jury. On November 24, 1980, appellant was found guilty of attempted burglary ¹, criminal conspiracy ² and possessing a prohibited offensive weapon ³ for his participation in a scheme to burglarize a house. No post-verdict motions were filed and on April 2, 1981, Judge Jamison imposed concurrent sentences of eighteen months to ten years for the attempted burglary conviction and eighteen months to five years for the conspiracy conviction. Sentence was suspended on the remaining conviction of possessing a prohibited offensive weapon. Appellant thereafter filed a pro se petition for reconsideration of sentence which was denied.

While represented by new counsel, appellant filed an appeal from the judgment of sentence. However, on May 26, 1982, this Court remanded the matter to the lower court without prejudice to appellant's right to raise issues in appropriate post-conviction proceedings. On August 12, 1982, appellant filed a petition under the Post-Conviction Hearing Act (hereinafter PCHA) ⁴ and subsequently, on January 6, 1983, a hearing was held before the Honorable Edward J. Blake. On January 17, 1984, the PCHA court denied appellant's petition and the instant appeal followed.

Appellant first argues that he was denied a fair trial when, during the jury trial waiver colloquy, the trial judge asked appellant if he was a drug addict. In the course of the colloquy, the trial judge asked the appellant:

Q. Are you addicted to drugs or alcohol?

A. Not right now I am not. I had a drug problem at one time.

Q. Have you had any drugs or alcohol or any intoxicants within the past twelve hours?

A. No, Your Honor.

(N.T. 6). Appellant contends that this exchange denied him the right to be tried by an impartial judge since it established a motive for the attempted burglary and implied the existence of a prior criminal record. We disagree with appellant's claim and deny it for the following reasons.

First, appellant's answer does not indicate that he was addicted to drugs at the time of the incident in question. Our review of the record leads us to conclude that the trial judge asked the above question in an attempt to guarantee that the appellant was of a sound and competent mind during the jury trial waiver colloquy. Contrary to appellant's contentions, the question at issue was elicited to ensure the fairness of the proceedings and reflected the trial judge's concern that the appellant be capable of making a valid jury waiver. ⁵ Moreover, even assuming that the above question was prejudicial, the degree of prejudice was insufficient to merit relief. We point out that appellant was tried before the court without a jury and trial judges, sitting as fact finders, are presumed to ignore prejudicial evidence. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Moody, 295 Pa.Super. 106, 115 n. 1, 441 A.2d 371, 375 n. 1 (1982). Furthermore, in light of the overwhelming evidence of guilt, we fail to see how appellant's answer to the above question would have contributed to the verdict. Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981). As this claim has no merit, trial counsel cannot be deemed ineffective for failing to preserve it. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Finally, under the recent United States Supreme Court decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (cited favorably by this Court in Commonwealth v. Garvin, --- Pa.Super. ---, 485 A.2d 36 (1984); also cited favorably and quoted extensively in Commonwealth v. Litzenberger, --- Pa.Super. ---, 482 A.2d 968 (1984)), not only possible prejudice, but prejudice such as would undermine the integrity of the verdict must be clearly demonstrated. Here, the appellant has failed to establish the necessary degree of prejudice to satisfy this requirement.

Appellant next contends that there was insufficient evidence to convict him of attempted burglary. The trial evidence, viewed in a light most favorable to the Commonwealth as verdict winner, established the following. On June 23, 1980, at approximately 9:00 p.m., members of the Philadelphia Police Department were conducting a surveillance of appellant, co-defendant Skalski and Marlene Papa as they sat in a car parked in a store lot. The police witnessed Skalski go to the front door of an unlit house and knock on the door for about five minutes. Skalski returned to the car and the appellant went to the back of the house. A detective stationed near the rear of the house saw appellant break the glass in the back door and kick and bang on the door. About ten minutes later, appellant returned to the car, talked to Skalski, removed a shiny object from the trunk and returned to the back of the house. About ten minutes later, appellant again returned to the car. Appellant and Skalski then pulled out of the lot, drove away briefly, and then came back to the lot. For the third time, appellant went to the rear of the house for another ten or fifteen minutes and then returned to the car. Immediately thereafter, the police arrived and placed all of the occupants of the car under arrest. The officers found a bent screwdriver and hammer in the car, and, while searching appellant, discovered a nine inch switchblade in his pocket. The detective who examined the rear of the house testified that he found glass from the door on the pavement and that the doorknob and a strip of molding from the side door were also on the ground. Additionally, there were pry marks in the wood next to the door locks. Appellant stipulated to the owner's testimony that the door was intact when she left in the morning and that no one had permission to enter her house.

The test for determining the sufficiency of the evidence in a criminal case is whether, viewing all of the evidence admitted at trial in a light most favorable to the Commonwealth, and drawing all proper inferences therefrom, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Tribble, 502 Pa. 619, 467 A.2d 1130 (1983). Moreover, any element of the crime may be established wholly by circumstantial evidence, Commonwealth v. Joyner, 489 Pa. 502, 414...