Com. v. Jones

• Court: Superior Court of Pennsylvania
• Writing for the Court: OPINION BY WIEAND
• Citation: 298 Pa.Super. 199,444 A.2d 729
• Decision Date: 16 April 1982
• Parties: COMMONWEALTH of Pennsylvania v. Ronald JONES, Appellant.

Page 729

444 A.2d 729 298 Pa.Super. 199 COMMONWEALTH of Pennsylvania
v.
Ronald JONES, Appellant. Superior Court of Pennsylvania. Argued Feb. 24, 1981.
Filed April 16, 1982.

Page 730

[298 Pa.Super. 202] Julius E. Fioravanti, Philadelphia, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, WIEAND and JOHNSON, JJ.

Page 731

OPINION BY WIEAND, Judge:

Ronald Jones was tried by a jury and found guilty of attempted burglary, ¹ criminal trespass ² and conspiracy. ³ Post trial motions were denied, and appellant was sentenced for attempted burglary and conspiracy to concurrent terms of imprisonment for not less than four nor more than ten years. On direct appeal he contends that the evidence was insufficient to sustain the convictions and that trial counsel was variously ineffective. We find no merit in these arguments and affirm the judgments of sentence.

The evidence established that on September 21, 1978, at approximately 12:10 a. m., Police Officer Thomas Christy, in response to a call, arrived in the 2900 block of North Fifth Street in Philadelphia where he observed other policemen in front of 2907 and four or five figures on the roofs of 2907 [298 Pa.Super. 203] and 2909. Having previously learned of a burglary in process, he went to the alley at the rear of the buildings and climbed to the roof of a home to the north of 2907. Moving across the rooftops, he saw several figures running on the roof of 2907. When one of the running persons came within twenty (20) feet of Christy, he caught him in the glow of his flashlight and ordered him to stop. He observed a black male, approximately 6'1"' in height, wearing khaki colored trousers and shirt. Christy lost sight of this person but found him again moments later beneath him, in the alley between the homes. There he was hiding in a doorway. Appellant was arrested and taken into custody, together with another male who was also found hiding in the alley. A search of appellant's person produced no incriminating evidence. However, examination of the premises at 2909 yielded two chisels, a hammer and a torch lying on the floor of the laundromat there housed. Above them was a hole which had been cut in the roof and from which a heavy rope had been suspended. Approximately $500 in coins had been forcibly removed from money boxes attached to machines on the premises.

"In appraising the sufficiency of evidence, we must apply a two-step test. First we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could properly have based its verdict; then we must ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Herriott, 265 Pa.Superior Ct. 143, 147, 401 A.2d 841, 843-44 (1979), quoting from Commonwealth v. Eddington, 255 Pa.Superior Ct. 25, 26, 386 A.2d 117, 117-18 (1978). The Commonwealth, although required to prove every essential element of the crime charged beyond a reasonable doubt, may rely upon circumstantial evidence to meet that burden. See Commonwealth v. Joyner, 489 Pa. 502, 505, 414 A.2d 1003, 1004 (1980); Commonwealth v. Holzer, 480 Pa. 93, 98, 389 A.2d 101, 104 (1978).

[298 Pa.Super. 204] The evidence in the instant case, although circumstantial, was sufficient to sustain the convictions. Compare : Commonwealth v. Whalen, 189 Pa.Superior Ct. 351, 150 A.2d 133 (1959), cert. denied, 362 U.S. 944, 80 S.Ct. 809, 4 L.Ed.2d 772 (1960). Shortly after midnight, appellant was seen running across the roof of a building adjacent to a laundromat to which access had been gained through the roof. He was taken into custody by police while attempting to conceal himself in the doorway opening onto a neighboring alley. Inside the premises an attempt had been made to remove money from coin-operated laundry machines. These circumstances had greater probative value than mere presence at the scene of a crime. They were sufficient to enable a jury to infer that entry had been effected to commit the crime of theft and that appellant was a participant. Moreover, an attempt to flee or conceal oneself from the police is an additional circumstance from which guilt can be inferred.

Page 732

Commonwealth v. Whack, 482 Pa. 137, 142, 393 A.2d 417, 419 (1978); Commonwealth v. Osborne, 433 Pa. 297, 302-303, 249 A.2d 330, 333 (1969); Commonwealth v. Wilson, --- Pa.Superior Ct. ---, ---, 439 A.2d 770, 771 (1982); Commonwealth v. Rough, 275 Pa.Superior Ct. 50, 62, 418 A.2d 605, 611 (1980).

Appellant's remaining contentions pertain to the alleged ineffective assistance of counsel. He contends, first, that counsel had conferred with him only twice and, therefore, was inadequately prepared for trial. "It is well settled that 'mere shortness of time spent in conference with a client does not per se establish ineffective assistance of counsel.' " Commonwealth v. Harper, 233 Pa.Superior Ct. 294, 299, 334 A.2d 761, 763 (1975), quoting Commonwealth v. Owens, 454 Pa. 268, 271, 312 A.2d 378, 380 (1973). See also Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978); Commonwealth v. Hill, 450 Pa. 477, 481 & n.4, 301 A.2d 587, 590 & n.4 (1973); Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970); Commonwealth v. Nero, 250 Pa.Superior Ct. 17, 24-25, 378 A.2d 430, 434 (1977). We have previously stated that "the time actually spent by counsel with the accused [298 Pa.Super. 205] discussing his case is not necessarily related to, and affords no basis for inferring, the extent of total trial preparation." Commonwealth v. Owens, supra 454 Pa. at 272, 312 A.2d at 381. See also Commonwealth v. Berry, 440 Pa. 154, 157, 269 A.2d 921, 923 (1970).

Appellant has not directed our attention to any evidence of unpreparedness on the part of trial counsel and from our own review of the record, we find no evidence of inadequate preparation or unfamiliarity with the facts on the part of trial counsel. Appellant's allegations of inadequate preparation, therefore, are without merit.

Appellant next alleges that trial counsel was ineffective for not investigating and calling as witnesses appellant's alleged co-conspirators. The failure to call witnesses, even alleged alibi witnesses, is not per se ineffectiveness of counsel. Commonwealth v. Owens, supra, 454 Pa. at 274, 312 A.2d at 381-382; Commonwealth v. Rainey, 282 Pa.Superior Ct. 15, 422 A.2d 652 (1980); Commonwealth v. Williams, 274 Pa.Superior Ct. 464, 472, 418 A.2d 499, 503 (1980); Commonwealth v. Olivencia, 265 Pa.Superior Ct. 439, 449, 402 A.2d 519, 523 (1979); Commonwealth v. Washington, 239 Pa.Superior Ct. 336, 344, 361 A.2d 670, 674 (1976). Appellant had the burden of establishing that trial counsel was ineffective, Commonwealth v. Bundridge, 268 Pa.Superior Ct. 1, 3, 407 A.2d 406, 408 (1979); Commonwealth v. Klaric, 263 Pa.Superior Ct. 286, 290, 397 A.2d 1212, 1213 (1979); Commonwealth v. Sweitzer, 261 Pa.Superior Ct. 183, 191, 395 A.2d 1376, 1380 (1978), and to do this he had to establish not only that counsel...