Com. v. Phillips

• Citation: 2008 PA Super 30,946 A.2d 103
• Decision Date: 05 March 2008
• Docket Number: No. 2249 EDA 2006.,2249 EDA 2006.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Andre PHILLIPS, Appellant.
• Court: Pennsylvania Superior Court

946 A.2d 103

2008 PA Super 30

COMMONWEALTH of Pennsylvania, Appellee v. Andre PHILLIPS, Appellant.

No. 2249 EDA 2006.

Superior Court of Pennsylvania.

Argued January 8, 2008.

Filed March 5, 2008.

Reargument Denied May 7, 2008.

Richard T. Brown, Jr., Philadelphia, for appellant.

Debra A. Breneman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: KLEIN, GANTMAN, and KELLY, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Andre Phillips, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for robbery,¹ possessing instruments of crime ("PIC"),² and criminal conspiracy.³ We affirm Appellant's convictions, but vacate the judgment of sentence and remand for re-sentencing.

¶ 2 The relevant facts and procedural history of this appeal are as follows. Shortly after 11:00 p.m. on July 19, 2005, the victim had just parked his car near 47th and Pine Streets in Philadelphia. As the victim walked towards his home, he was approached by a young, African-American male on a bicycle. The man asked for directions, and the victim stopped to provide assistance. A second African-American male, also on a bicycle, approached the victim. The second male produced a gun and told the victim to empty his pockets. The first male took a DVD the victim had been carrying. The second male took the victim's wallet and cell phone. The robbers instructed the victim to "look the other way, just keep walking...." (N.T. Trial, 5/12/06, at 47). The victim walked to his home and immediately called 911.

¶ 3 Officer James DeAngelo responded to the call, and the victim provided a description of the perpetrators as men approximately eighteen (18) to twenty (20) years old. The first male wore a white baseball jersey and hat. The second male also wore a hat. Both men rode BMX-type bicycles and fled southbound on 47th Street. Officer DeAngelo broadcast the descriptions over police radio. Officers Gregory Speck and Joseph Sees, who were both in plainclothes, were already on patrol in an unmarked vehicle near the crime scene. The officers began to survey the area, which was devoid of pedestrian and vehicular traffic.

¶ 4 Approximately ten (10) to twelve (12) minutes after the radio broadcast, the officers observed Appellant, and co-defendant Kareem Somerville, exiting a park near the intersection of 43rd and Chester Streets. Both men fit the general descriptions provided by the victim. Further, the suspects rode BMX-type bicycles and were traveling away from the crime scene. The officers followed the suspects at a distance, but the suspects kept looking over their shoulders. Appellant eventually removed a black backpack from his shoulder and threw it near a parked car. At that point, the officers exited their vehicle, identified themselves, and stopped the suspects. Out of caution, Officer Speck also drew his weapon.

¶ 5 Officer Speck had Mr. Somerville place his hands on a parked car. Officer Keller arrived as backup and conducted a pat-down frisk of Mr. Somerville. In Mr. Somerville's right front pants pocket, Officer Keller discovered a loaded handgun with its serial number filed off. Officer Speck retrieved the backpack Appellant had thrown. Inside the backpack, the officers found a white-and-orange-striped shirt which resembled a baseball jersey, a black T-shirt, and two baseball caps. Additionally, the backpack contained the victim's wallet and DVD. Shortly thereafter, the victim arrived at the scene and positively identified the suspects' bikes and the clothing recovered from the backpack.

¶ 6 The Commonwealth subsequently charged Appellant and Mr. Somerville with robbery and related offenses. On May 3, 2006, Appellant filed a suppression motion, claiming the police "had no authority to seize [Appellant] or the backpack, nor to search either him or it." (Motion to Suppress, filed 5/3/06, at 1). Appellant concluded all evidence obtained as a result of the search and seizure should be suppressed. Following a hearing on the matter, the court denied Appellant's motion.

¶ 7 On May 16, 2006, a jury convicted Appellant of robbery, PIC, and conspiracy. The jury found Appellant not guilty of carrying a firearm without a license. The court conducted Appellant's sentencing hearing on July 12, 2006. At that time, the court applied the "deadly weapon enhancement" provisions of the sentencing guidelines and sentenced Appellant to an aggregate term of seven and one-half (7½) to fifteen (15) years' imprisonment. Appellant timely filed a post-sentence motion on Monday, July 24, 2006. In his motion, Appellant challenged the court's application of the deadly weapon enhancement:

[Appellant] moves for reconsideration of sentence because "deadly weapon enhancement—used" should not have applied to him: (a) because the jury acquitted him of violating the [U]niform [F]irearms [A]ct, neither enhancement ("used" or "possessed") should have been applied, and (b) because the weapon was not discharged by anyone and was at most possessed by someone other than [Appellant], the "used" enhancement was incorrect.

(Post-Sentence Motion, filed 7/24/06, at 1). By order entered August 4, 2006, the court denied Appellant's post-sentence motion.

¶ 8 Appellant timely filed the instant notice of appeal on August 10, 2006. On August 14, 2006, the court ordered Appellant to file a concise statement pursuant to Pa.R.A.P.1925(b), on or before August 31, 2006. Appellant timely filed his Rule 1925(b) statement on August 30, 2006.

¶ 9 Appellant now raises three issues for our review:

DID EXCLUDING THE PUBLIC FROM THE COURTROOM DURING VOIR DIRE VIOLATE THE PUBLIC TRIAL PROVISIONS OF THE FEDERAL AND STATE CONSTITUTIONS?

DID THE COURT ERR IN REFUSING TO INSTRUCT ON THE LESSER-INCLUDED OFFENSE OF THEFT?

DID THE COURT ERR IN APPLYING THE "MANDATORY MINIMUM" SENTENCE AND THE "DEADLY WEAPON ENHANCEMENT," AND WAS THE EVIDENCE INSUFFICIENT BY THE SAME LOGIC FOR PIC?

(Appellant's Brief at 2).

¶ 10 In his first issue, Appellant contends the constitutional right of access to court proceedings extends to voir dire. Appellant complains the court violated this right when it limited public access to voir dire. Appellant insists that where a court excludes the public: 1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; 2) the closure must be no broader than necessary to protect that interest; 3) the court must consider reasonable alternatives to closure; and 4) the court must make findings to support the closure. Appellant argues the court did not satisfy the aforementioned elements; instead, the court overreacted after the prosecutor remarked that Appellant's acquaintances had made her feel "uncomfortable" during an exchange outside the courtroom. Appellant concludes the court erred by limiting his associates' access to the courtroom during voir dire, and this Court must award a new trial. We disagree.

¶ 11 "A trial court's decision regarding access to judicial ... proceedings is within the sound discretion of the trial court, and we will reverse only if the trial court abuses its discretion." Commonwealth v. Martinez, 917 A.2d 856, 859 (Pa.Super.2007). "Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Id. (quoting Commonwealth v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 (2000)).

¶ 12 "The Sixth Amendment right to a public trial in a criminal case is binding on the states through the due process clause of the Fourteenth Amendment." Commonwealth v. Constant, 925 A.2d 810, 816 (Pa.Super.2007), appeal denied, 594 Pa. 675, 932 A.2d 1285 (2007).

The Pennsylvania Constitution likewise guarantees an accused's right to a public trial. The right to a public trial is applicable to voir dire proceedings.

* * *

In determining whether the voir dire procedure ... violated [the defendant's] right to a public trial, we keep in mind that such right serves two general purposes: (1) to prevent an accused from being subject to a star chamber proceeding; and (2) to assure the public that standards of fairness are being observed. The public's right to attend a trial is not absolute, and exists as a guarantee of fairness in judicial conduct during criminal court proceedings. Where trial courts perceive a threat to the orderly administration of justice in their courtrooms by an unmanageable public, they may always place reasonable restrictions on access to the courtroom, so long as the basic guarantees of fairness are preserved such as by the presence of the press and the making of a record for later review.

Id. at 816-17 (internal citations and quotation marks omitted). "The question in a particular case is whether that control [over the courtroom] is exerted so as not to deny or unwarrantedly abridge ... the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places." Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 173 (1989) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n. 18, 100 S.Ct. 2814, 2830 n. 18, 65 L.Ed.2d 973, 993 n. 18 (1980)).

¶ 13 Instantly, jury selection commenced on May 8, 2006. At the conclusion of the lunch recess, the prosecutor requested that the court dismiss the current panel. The prosecutor indicated several individuals associated with one of the defendants had assembled near the jury room. One of the individuals said to the prosecutor: "Are you going to look at me now? You finally looked at me." (N.T. Voir Dire, 5/8/06, at 19). The individuals also gave "nasty looks" to the panel when the court reporter ushered them into the jury room. (Id....