Com. v. Thompson

• Decision Date: 21 June 1985
• Citation: 495 A.2d 560,343 Pa.Super. 468
• Parties: COMMONWEALTH of Pennsylvania v. Arnell THOMPSON, Appellant. 456
• Court: Pennsylvania Superior Court

Page 560

495 A.2d 560

343 Pa.Super. 468

COMMONWEALTH of Pennsylvania v. Arnell THOMPSON, Appellant.

456

Superior Court of Pennsylvania.

Submitted Jan. 18, 1985.

Filed June 21, 1985.

Marilyn J. Gelb, Philadelphia, for appellant.

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

Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.

JOHNSON, Judge:

Appellant, Arnell Thompson, takes this appeal from the order denying his request for relief under the Post Conviction Hearing Act (PCHA). ¹ Appellant raises three issues for our consideration:

I. Where appellant was not brought to trial within one hundred and twenty days after his arrival in Pennsylvania pursuant to the Interstate Agreement on Detainers, were trial and appellate counsel ineffective for failure to move to dismiss the indictments and for failure to preserve this meritorious issue on direct appeal?

II. Where conviction of robbery and aggravated assault have arisen out of the same transaction, was appellant's consecutive sentence on the aggravated assault charge illegal?

III. Where no record of appellant's sentencing proceeding can be located, and appellant is hereby precluded from raising the issue that the sentencing judge did not state the reasons for his sentence on the record, should appellant be afforded a new sentencing proceeding?

Finding none of these issues to have merit, we affirm.

On April 20, 1974, appellant was arrested for the shooting and robbery of a Philadelphia physician, Dr. Ross Noll. Thereafter, appellant absented himself numerous times from the jurisdiction, as we detailed more fully in appellant's direct appeal. Commonwealth v. Thompson, 262 Pa.Super. 211, 396 A.2d 720 (1978). Ultimately, appellant was located in a New York prison and was returned to Pennsylvania on June 23, 1976 by detainer, as per the provisions of the Interstate Agreement on Detainers Act [IAD]. ² Trial was set for July 27, 1976. On July 23, 1976, appellant filed a motion to dismiss under Pa.R.Crim.P. 1100(f). Appellant's case was called for trial on July 27, 1976, but a seven-day continuance was ordered by the court to allow for consideration of appellant's Rule 1100 petition. On August 3, 1976, appellant's Rule 1100 motion was denied. On October 26, 1976 a hearing was held on appellant's motion to suppress. Appellant's trial commenced on October 27, 1976, one hundred and twenty-seven days after appellant's return by detainer from New York.

The relevant provision of the IAD reads:

(c) In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

42 Pa.C.S. § 9101 Article IV(c).

The supreme court has stated of the IAD that "[t]he purpose sought to be achieved by this act is to promote and foster prisoner treatment and rehabilitation programs by eliminating the uncertainties which accompany the filing of detainers." Commonwealth v. Fisher, 451 Pa. 102, 106, 301 A.2d 605, 607 (1973). Our court, referring to Fisher, has noted, "When the defendant causes the delay he is not entitled to be discharged. See e.g., People v. Leonard, 18 Ill.App.3d 527, 310 N.E.2d 15 (1974)." Commonwealth v. Wilson, 231 Super. 451, 454 n. 6, 331 A.2d 792, 794 n. 6 (1974). In Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979), the defendant, six days before the running of the IAD period, consented to a continuance of the trial. On the new trial date, trial was again delayed because the defendant filed a motion to dismiss the charges for violation of the IAD. The supreme court found no violation of the IAD under these facts. The court held that the running of the period was tolled either by the defendant's consent or by his own actions. In so ruling, the court cited to Article VI(a) of the IAD, which provides: "[T]he running of said periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter." (Emphasis added). Cf. Commonwealth v. Kripplebauer, 322 Pa.Super. 317, 469 A.2d 639 (1983) (plurality) (Where defendant merely exercised his right under Pa.R.Crim.P. 307 by requesting a period of thirty days after his preliminary hearing in which to file his pre-trial motions, defendant neither voluntarily waived his speedy trial rights nor consented to their waiver per Commonwealth v. Washington, supra.)

Returning to the facts of the instant case we find, in keeping with Washington, supra, that there has been no violation of the IAD. When appellant filed his Rule 1100 motion, the court ordered that trial, set for July 27, 1976, be continued for seven days. Neither appellant nor his counsel objected to this seven-day continuance. See Commonwealth v. Diggs, 334 Pa.Super. 268, 482 A.2d 1329 (1984). As we previously noted, Article IV(c) provides that "for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance" 42 Pa.C.S. § 9101 Article IV(c). On the facts of the instant case, we find that the court properly granted a "necessary and reasonable" continuance "for good cause shown," occasioned by appellant's motion to dismiss under Rule 1100(f). When this seven-day continuance is excluded from the time period, it can be determined that appellant's rights under the IAD were not violated because appellant was tried within 120 days of his return to Pennsylvania by detainer. As for appellant's claim that trial and appellate counsel were ineffective for having failed to raise this IAD issue, since counsel will not be found ineffective for having failed to raise a baseless claim, we find appellant's issue to have no merit. Commonwealth v. Blackburn, 328 Pa.Super. 483, 477 A.2d 548 (1984).

Appellant next argues that his double jeopardy rights, under both state and federal constitutions, were denied when he received a consecutive sentence on both the aggravated assault charge and the robbery charge. Appellant asserts that these two charges merge for sentencing purposes. We disagree.

For two crimes to merge for sentencing, one offense must necessarily have involved the other; that is, the essential elements of one must also be essential elements of the other. Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). To determine if a merger should be found, a court must examine the facts of the case to determine if there was one, or more than one act and, if more than one, whether these acts were part of a single transaction. Commonwealth v. Buser, 277 Pa.Super. 451, 419 A.2d 1233 (1980). As we said in Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980):

The merger of sentences doctrine is concerned not with conviction but punishment; its purpose is to preclude the imposition of separate punishments for what in practical effect was but a single criminal act. Thus, in merger of sentence cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act.

Id. at 475, 421 A.2d at 820-21 (emphasis added). See also Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982).

In the instant case the victim, Dr. Ross Noll, testified that appellant entered the doctor's office and put a sawed-off shotgun to Dr. Noll's chest. Appellant then demanded all of the doctor's money and ordered the doctor to get down on the floor, face down. While Dr. Noll was on the floor, an accomplice entered, tied Dr. Noll's wrists and ankles, and placed a rubber examining glove and hand towel in the doctor's mouth. A wallet, car keys, and gun were stolen from Dr. Noll's person. After an interval of at least two or three minutes, during which time appellant and his accomplice searched the doctor's office, appellant approached Dr. Noll and shot him in the head with the stolen handgun. Mercifully, Dr. Noll did not die from his injury, although he was temporarily blinded.

As set forth in the indictment, appellant was charged under the following subsections of the robbery statute:

(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit any felony of the first or second degree....

18 Pa.C.S. § 3701.

Appellant was also charged with aggravated assault under the following subsections:

(a) Offense defined.--A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

....

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.

18 Pa.C.S. § 2702.

As the previous review of the facts indicates, appellant completed the offense of robbery when he threatened Dr. Noll with a shotgun, bound and gagged the doctor, and then took his wallet, car keys and gun. The aggravated assault occurred afterwards when appellant later shot Dr. Noll. Thus, the facts show that in practical effect appellant committed more than one act. See Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980) (Where victims were not only threatened in the course of the robbery but were also subject to additional attacks by defendant wh...