Com. v. Phillips

• Decision Date: 07 January 1992
• Citation: 411 Pa.Super. 329,601 A.2d 816
• Parties: COMMONWEALTH of Pennsylvania v. Jerry Lee PHILLIPS, Appellant.
• Court: Pennsylvania Superior Court

Page 816

601 A.2d 816

411 Pa.Super. 329

COMMONWEALTH of Pennsylvania v. Jerry Lee PHILLIPS, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 19, 1991.

Filed Jan. 7, 1992.

Carmela R.M. Presogna, Asst. Public Defender, Erie, for appellant.

Joseph P. Conti, Asst. Dist. Atty., Erie, for Com., appellee.

Before BECK, TAMILIA and HESTER, JJ.

TAMILIA, Judge:

On June 28, 1990, appellant, Jerry Lee Phillips, was sentenced to fifteen (15) to thirty (30) years imprisonment as a consequence of a jury finding him guilty of robbery, ¹ criminal conspiracy ² to commit robbery and aggravated assault. ³ The charges stemmed from an incident wherein appellant and Anthony Phillips, his brother and co-conspirator, beat and robbed the victim, Norman Musset, and escaped in a car driven by Leander Speed.

On appeal Phillips alleges the court erred by: 1) denying his motion for directed verdict on criminal conspiracy; 2) allowing discriminatory jury selection; 3) denying appellant's request for a Kloiber charge; 4) failing to instruct on accomplice liability; and 5) imposing a manifestly excessive and unreasonable sentence. Appellant also argues trial counsel was ineffective for failing to challenge the alleged discriminatory aspects of jury selection, failing to preserve for appeal the discretionary aspects of his sentence and failing to produce alibi witnesses.

Appellant contends because co-conspirator Anthony Phillips was previously acquitted on the charge of conspiracy, he was entitled to a directed verdict on the charge of conspiracy, and relies on Commonwealth v. Campbell, 257 Pa.Super. 160, 390 A.2d 761 (1978), affirmed per curiam, 484 Pa. 387, 399 A.2d 130 (1979), in support of this averment. Campbell held where a conspiracy indictment against a defendant names only one other person as a co-conspirator and that person was acquitted prior to defendant's trial, defendant may not be convicted of conspiracy. Id. In 1980, however, our Supreme Court found a valid conviction for conspiracy will not be disturbed by a subsequent acquittal at separate trials of all alleged conspirators. Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980). It remains for this Court to decide whether Byrd impliedly overrules Campbell and is applicable to this case where the co-conspirator was acquitted before appellant came to trial.

In his Opinion, Justice Roberts discusses at great length well-established principles in the areas of accomplice and conspiratorial liability. The origin of the law in Campbell, he reasons, is from a time when co-conspirators were tried jointly and a jury could not logically find the evidence proved conspiracy involving only one of the defendants being tried. This acquittal rule, however, loses much of its force when faced with alleged co-conspirators who are tried separately before completely different jurors and, conceivably, different evidence. Justice Roberts draws an analogy between the co-conspirator action before the Court and the law on accomplice liability, which allows prosecution for accomplice liability although the person who is claimed to have committed the crime was acquitted, and states to do otherwise would conceivably compound an erroneous or irrational acquittal rather than promote the Commonwealth policy of protecting the public interest. See Commonwealth v. Brown, 473 Pa. 458, 375 A.2d 331 (1977). In a Byrd footnote Justice Roberts addresses Campbell as follows:

6. The issue in Brown was presented as one of collateral estoppel and our decision was to the effect that such a principle did not preclude subsequent prosecution of an alleged accomplice after acquittal of other co-defendants. The present appellant was tried and convicted before his co-conspirator's acquittal and thus no claim of estoppel is asserted here. Yet this in no way suggests that Brown is inapposite. Rather the permissibility of trying a defendant after a co-defendant has already been acquitted on similar charges presents, if anything, a more difficult question. We note that although alleged principal Smith was acquitted of all charges at his subsequent trial, appellant does not challenge his own convictions of robbery or murder on this basis.

We have not ignored our per curiam affirmance of the Superior Court's decision in Commonwealth v. Campbell, 257 Pa.Super. 160, 390 A.2d 761 (1978), aff'd, 484 Pa. 387, 399 A.2d 130 (1979), which refused to uphold the conviction of one conspirator where his only alleged co-conspirator had been previously acquitted. Although today's decision casts doubt on Campbell, we need not and hence do not now accept the Commonwealth's invitation to reconsider that decision.

Byrd, supra, 490 Pa. at 555 n. 6, 417 A.2d at 178-79 n. 6. We are convinced, based on the reasoning by Justice Roberts, had the Byrd Court chosen to address the issue presently before this Court our Supreme Court would have found appellant is entitled to no relief. It stands to reason if a subsequent acquittal of one co-conspirator does not disturb a prior conviction of his co-conspirator, a prior acquittal of a co-conspirator does not automatically afford relief to the defendant/co-conspirator yet to be tried. We hold, therefore, the prior acquittal of a sole co-conspirator in a separate trial does not preclude finding the subsequently tried co-conspirator guilty of conspiracy. Accordingly, we find the trial court did not abuse its discretion by denying appellant's motion for a directed verdict on the charge of criminal conspiracy.

Next, appellant argues the Commonwealth failed to provide a sufficient explanation for using a peremptory challenge to strike a black person from the venire, and the court erred by failing to conduct a full evidentiary hearing to determine whether the challenge was racially motivated. Appellant notes he is black and the victim is white.

An appellate court will reverse a trial court's finding of no discrimination in the jury selection process only if that finding is clearly erroneous. Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989), alloc. denied, 525 Pa. 631, 578 A.2d 926 (1990). The primary function of a peremptory challenge is to allow parties to strike prospective jurors whom they have good reason to believe might be biased but who are not so clearly and obviously partial they could otherwise be excluded from the panel. Id. In assessing the legitimacy of a peremptory challenge and the reasonableness of the prosecutor's explanation the trial court must view the totality of the circumstances. Commonwealth v. Weaver, 390 Pa.Super. 434, 568 A.2d 1252 (1989). Where the defense makes a prima facie case that a prosecutor has exercised a peremptory challenge for racially discriminatory purposes, the burden shifts to the prosecutor to submit a neutral explanation for the use of the challenge. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Commonwealth v Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). A prima facie case of racially discriminatory jury selection has three elements: 1) the defendant's membership in a cognizable racial group; 2) the prosecutor's use of peremptory strikes to exclude a member of that group; and 3) an inference arising that the prosecutor used strikes to exclude venire persons on account of race. Weaver, supra.

The trial court found, based on the totality of the circumstances, the defense established a prima facie showing of discrimination, and conducted a hearing in its chambers wherein the burden was placed on the Commonwealth to establish its use of a peremptory strike to remove the only black person available for jury duty was not racially motivated. Although this Court does not agree with the trial court's finding the defense established a prima facie case of discrimination, our disagreement is immaterial in that we find the Commonwealth successfully justified its decision to strike the sole black prospective juror. When defense counsel objected to the prosecution's challenge, the Commonwealth explained the challenge was not exercised for racial considerations but on the basis of the venire person's occupation as a drug counselor and her possible liberal bias and tolerance toward the offenses committed by appellant, as well as a counselor's inclination to accept representations or explanations made by individuals with whom they deal (N.T., 5/21/90, p. 2). The court accepted the Commonwealth's explanation as a good faith reason and added it had had, on prior occasions, many opportunities to observe this particular prosecutor and had never observed "the slightest hint of discriminatory behavior nor, of course, would we have permitted it." (Slip Op., Fischer, J., 7/11/90, p. 2.)

Based on the totality of the circumstances we find all appellant's arguments attacking the Commonwealth's use of a peremptory challenge to strike the only black venire person devoid of merit.

Appellant's next argument contends the court erred by denying his request for a cautionary charge in accordance with Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); Pa.SSJI (Crim) 407.1 Identification testimony. The Kloiber instruction "is appropriate where the witness was not in a position to clearly observe the assailant or the identification is weakened by witness's failure to identify the defendant on one or more occasions." Id.; Commonwealth v. Lee, 401 Pa.Super. 591, 585 A.2d 1084 (1991). The facts reveal the victim was attacked by appellant and his brother in the victim's well-lit kitchen. The victim testified he was within two to three feet of appellant and his brother at all times, and the assailants had nothing covering their faces. The victim contends he had an unobstructed view of his assailants for three to five minutes before his glasses were removed and he was pistol whipped on his head. Although in his statement to the police given shortly after this ferocious...