Com. v. Postell

• Decision Date: 06 June 1997
• Citation: 693 A.2d 612
• Parties: COMMONWEALTH of Pennsylvania v. Alfonso POSTELL, Appellant.
• Court: Pennsylvania Superior Court

Page 612

693 A.2d 612

COMMONWEALTH of Pennsylvania v. Alfonso POSTELL, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 11, 1997.

Filed April 7, 1997.

Reargument Denied June 6, 1997.

Jay Meyers, Philadelphia, for appellant.

Peter J. Gardner, Assistant District Attorney, Philadelphia, for Com., appellee.

Before CIRILLO, President Judge Emeritus, and JOHNSON and OLSZEWSKI, JJ.

CIRILLO, President Judge Emeritus.

Alfonso Postell appeals from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

Postell had lived with the victim, Portia Walker, in her home for approximately eight years before their relationship soured. As a result, Postell vacated Ms. Walker's home and terminated the relationship. Although he no longer resided there, Postell frequently visited the victim and her grandchildren. Ms. Walker, attempting to move on with her life, requested that Postell refrain from any further visits. Postell was unable or unwilling to heed the victim's wishes and continued to arrive at her home unannounced.

On the evening of August 23, 1993, Postell visited the victim for the final time. Postell explained to Ms. Walker that he was desirous of a reconciliation. Ms. Walker, however, responded that she wanted nothing further to do with him. A heated argument ensued, culminating in a physical fight between Ms. Walker, a five-foot female weighing 128 lbs., and Postell, a six-foot two inch male weighing approximately 272 lbs. The victim was able to call the police, who, upon arrival, ordered Postell to leave.

Tired from the evening's events, Ms. Walker, accompanied by Tony Parker, a man with whom she was romantically involved, went to bed. At approximately six o'clock the next morning she awoke to find herself lying on the floor on her back and staring into the face of Postell, who was kneeling on top of her. Postell started to shake Ms. Walker's shoulders violently, smashing them with intense force against the floor. After a few minutes of intense shaking, Postell removed himself from Ms. Walker. She tried to get up and escape, however, she was unable to move.

Ms. Walker was rushed to the hospital where the doctors diagnosed her with a severe spinal cord injury and a collapsed lung. The injury to her spine is permanent and as a result she is a quadriplegic. In addition, at the time of the attack, Ms. Walker was pregnant. Due to the violent injuries that she sustained, however, she suffered a spontaneous abortion.

Shortly after the attack Postell was arrested. A bench trial ensued after which he was found guilty of aggravated assault, criminal trespass, and reckless endangerment. Postell was sentenced on September 12, 1994, to four to ten years imprisonment and was ordered, as a condition of sentence, to have no further contact with Ms. Walker. On that same night, in direct violation of this condition, Postell telephoned the victim and explained that he was going to take care of her once he was released from prison. In response to this conversation, the Commonwealth filed a timely motion for reconsideration of Postell's sentence. A hearing was held after which the sentencing judge imposed a modified sentence of five to ten years imprisonment. Postell filed post-sentence motions which were denied. This appeal followed. Postell presents the following issues for our consideration:

1. Where the appellant had been sentenced to a term of four to ten years and then later increased by an additional year because appellant made a single telephone call to the complainant, was this not a violation of the Double Jeopardy Clauses of the state and federal constitutions?

2. Is making a telephone call a proper reason to impose an additional year to an original sentence, or an abuse of discretion in making an excessive punishment and sentence?

3. Did not the lower court abuse its discretion in increasing punishment for the appellant because he made a telephone call to the complainant in violation of his no-contact Order?

4. Were not leading questions asked during the re-sentencing hearing of December 16, 1994 prejudicial to the rights of the appellant?

5. Was not the lower court in error in forthwith [sic] vacating the sentence of September 12, 1994 upon the mere filing of a motion for reconsideration and sentence by the Office of the District Attorney, without a hearing at that point in time and place?

Postell first contends that the trial court's decision to vacate his original sentence and re-sentence him to a greater minimum period of incarceration after a hearing on a motion to reconsider the sentence is violative of the Double Jeopardy clauses of the United States and our Commonwealth's constitutions. Specifically, Postell contends that the Double Jeopardy clauses protect against multiple punishments for the same offense and prohibit the sentencing court from modifying a sentence where such modification increases the sentence. Postell's argument rests primarily upon our state supreme court's decision in Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971). As explained below, the reasoning applied in Silverman is no longer controlling.

In Silverman, the trial court originally sentenced defendant to a suspended sentence upon the happening of certain conditions. The next day, however, the trial court recalled defendant and resentenced defendant to a greater sentence based primarily upon information it had received after the original sentence was imposed. Our supreme court held that a modification of sentence that increased punishment violates the Double Jeopardy clauses of the Pennsylvania and United States Constitutions. Silverman, 442 Pa. at 215-17, 275 A.2d at 311. The court explained that the Double Jeopardy Clause of the United States Constitution applies to the states and inferred that the United States Supreme Court would consider sentence modifications increasing punishment a violation of the double jeopardy clause, because an increase in penalty subjects defendant to double punishment for the same offense. Id. The court concluded, therefore, that notwithstanding a trial court's authority to modify sentence, modification may only decrease a sentence so that it comports with the Double Jeopardy Clause. Id. Implicit in the court's reasoning was the assumption that once sentence was imposed, it became final for purposes of double jeopardy protection.

Subsequent to Silverman, the United States Supreme Court decided the precise issue of whether a modification of sentence increasing punishment violated the Double Jeopardy Clause of the United States Constitution. In the seminal case of United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Supreme Court held that the Double Jeopardy Clause is implicated only when the defendant has a legitimate expectation that the sentence that is issued is final. Id. at 139, 101 S.Ct. at 438-39. The Court explained that unlike a jury verdict of acquittal, imposition of sentence is not per se final for purposes of the double jeopardy protection. The Court reasoned that a defendant could not have a legitimate expectation of finality where Congress had specifically provided that sentences were appealable. Id. he DiFrancesco court explained:

Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where ... Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence.

DiFrancesco, 449 U.S. at 139, 101 S.Ct. at 438.

Our court first sanctioned the reasoning of DiFrancesco in Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982). ¹ In Anderson, we addressed the procedure that must be employed in order for the Commonwealth to preserve appellate review of sentencing. In explaining that the Commonwealth was required to first file a motion to modify a defendant's sentence pursuant to former Rule 1410, prior to filing an appeal, we determined that the Commonwealth's right to appellate review of a defendant's sentence defeated a defendant's expectation of finality upon pronouncement of that sentence. ²

The finality reasoning of DiFrancesco became further entrenched in this Commonwealth's jurisprudence following our decision in Commonwealth v. Broadie, 339 Pa.Super. 394, 489 A.2d 218 (1985). In that case, the defendant pled guilty to robbery and conspiracy and was originally sentenced to five concurrent terms of five to ten years imprisonment. The Commonwealth filed a motion to reconsider the sentence. A hearing was held after which the trial court modified the defendant's sentence to four concurrent five to ten year terms of imprisonment and one consecutive term of five to ten years. The defendant appealed, claiming that the modified sentence violated his right to protection against double jeopardy. Relying upon DiFrancesco and Anderson, we held that the Double Jeopardy Clause did not protect him from modification of his sentence where such modification is accomplished within the statutorily proscribed time period allotted for appeal of his sentence, since there can be no expectation of finality during the appeal period. Broadie, 339 Pa.Super. at 398-99, 489 A.2d at 220.

Since the Supreme Court's decision in DiFrancesco, we have consistently applied the principle that the defendant must have a legitimate expectation of finality prior to affording him double jeopardy protection. We conclude, therefore, that our supreme court's decision in Silverman is no longer the law of this Commonwealth. ³ See Commonwealth v. Stein, 378 Pa.Super. 339, 350-52, 548 A.2d 1230, 1236-37 (1988) (trial court's increase of sentence upon motion to modify by the prosecution from seven and one-half years to fifteen years to...