Com. v. Walker

• Decision Date: 06 December 1985
• Citation: 348 Pa.Super. 207,501 A.2d 1143
• Parties: COMMONWEALTH of Pennsylvania v. Joseph C. WALKER, Appellant. 01025 Pitts. 1983.
• Court: Pennsylvania Superior Court

Page 1143

501 A.2d 1143

348 Pa.Super. 207

COMMONWEALTH of Pennsylvania v. Joseph C. WALKER, Appellant.

01025 Pitts. 1983.

Superior Court of Pennsylvania.

Argued March 27, 1985.

Filed Dec. 6, 1985.

W. Penn Hackney, Asst. Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before MONTEMURO, ROBERTS and BLOOM, JJ. ^*

MONTEMURO, Judge:

This appeal challenges, in the context of ineffectiveness of trial counsel, the constitutionality of the Mandatory Minimum Sentencing Act [Act], 42 Pa.C.S. § 9712, and requests a reversal of conviction or a remand to conduct an evidentiary hearing on other claims of ineffective assistance of trial counsel. We find appellant was not in any respect denied effective assistance of trial counsel. Accordingly, we affirm the conviction on separate counts of robbery, and on a weapons charge.

Following a guilty verdict on charges of robbery, 18 Pa.C.S. § 3701(a)(1)(ii), and carrying a concealed firearm without a license, 18 Pa.C.S. § 6106, in connection with incidents at the Concord Liberty Savings and Loan in Pittsburgh, Pennsylvania, the jury determined by way of special interrogatory that appellant visibly possessed a firearm during the robbery. Upon the jury's finding of guilt, appellant pleaded guilty to another robbery at the South Pittsburgh Savings and Loan. Post-verdict motions were denied, and appellant was sentenced as follows:

Robbery (South Pittsburgh): three (3) to ten (10) years imprisonment;

Robbery (Concord Liberty): Five (5) to ten (10) years imprisonment in accordance with Section 9712 of the Act to run concurrently with the sentence above;

Firearms violation: Suspended.

In determining whether trial counsel was ineffective we must first consider whether there is arguable merit to the claim. Commonwealth v. Broadwater, 330 Pa.Super. 234, 240, 479 A.2d 526, 529 (1984). Trial counsel will not be deemed ineffective for failure to raise a frivolous issue or to advance a baseless claim. Commonwealth v. Silvis, 307 Pa.Super. 75, 77, 452 A.2d 1045, 1046 (1982). If we determine the claim has arguable merit, we must then decide whether the course of action chosen by trial counsel had some reasonable basis designed to effectuate appellant's best interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Finally, should we find arguable merit, and should we find no reasonable basis calculated to effectuate appellant's best interests, before we may grant appellant relief, we must also find appellant was prejudiced by the action taken. Commonwealth v. Clemmons, 505 Pa. 356, 362, 479 A.2d 955, 958 (1984).

Initially, we note appellant has satisfied the procedural requirement that ineffectiveness of trial counsel must be raised in the first proceeding in which appellant is represented by counsel other than the one whose stewardship is challenged. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 305-6, 422 A.2d 1126, 1129 (1980), citing Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

Appellant first argues the ineffectiveness of his trial counsel by contending counsel should have pursued four constitutional challenges to section 9712, viz. : (1) it violates due process by allowing the sentencing court, using the standard of a preponderance of the evidence, to determine an "element of the crime", i.e., visible possession of a firearm, rather than reserving that decision for the trier of fact pursuant to the "beyond a reasonable doubt" standard; (2) it denies appellant his right to a jury trial on an "essential element" of the crime with which he was charged, again the visible possession of a firearm; (3) it denies appellant his due process rights by permitting the Commonwealth to wait until after conviction to inform him of the nature of the crime with which he was charged; and (4) it unconstitutionally gives the prosecution unbridled discretion to decide when to apply the mandatory sentence, thereby violating due process and the separation of powers doctrine.

Appellant's first constitutional challenge has been decisively rejected by the Pennsylvania Supreme Court in Commonwealth v. Wright, --- Pa. ---, 494 A.2d 354 (1985), cert. granted sub nom. McMillan v Pennsylvania, --- U.S. ----, 106 S.Ct. 58, 88 L.Ed.2d 47, (1985). Likewise, the Wright court flatly rejected appellant's fourth argument relating to the "unbridled discretion" placed in the hands of the prosecution. Wright, supra at --- n. 4, 494 A.2d at 361 n. 4. As to the appellant's argument that he was denied his right to jury determination of visible possession of a firearm, appellant admits, as he must, that the jury did in fact determine the issue by means of a special interrogatory. His real complaint centers on the standard used in that determination, i.e., preponderance of the evidence. That complaint in turn hinges on his contention that visible possession of a firearm is an element of the crime with which he was charged. As this claim was rejected by the court in Wright, we find no merit to the argument. Finally, the notice argument has been clearly rejected by our recent decision in Commonwealth v. Cofoni, --- Pa.Super. ---, 503 A.2d 431 (1985). Finding all four of appellant's constitutional attacks on section 9712 to be meritless, we decline to find his trial counsel ineffective for failing to pursue them. Silvis, supra.

Appellant next argues trial counsel was ineffective for failing to file a motion to dismiss the case, citing the Commonwealth's violation of the speedy trial requirement of Pa.R.Crim.P. 1100(a)(2). ¹ The record reveals that 103 days elapsed between the date of appellant's arrest, August 26, 1982, and the date he entered his guilty plea, December 8, 1982. However, appellant subsequently filed a motion to withdraw his guilty plea which was granted by the court below on February 3, 1983; appellant was eventually tried on May 10, 1983. Appellant argues that the February 3rd withdrawal of his guilty plea triggered anew the 180 day time limit under Pa.R.Crim.P. 1100(a)(2). He further argues that the 95 days between February 3 and May 10, when added to the 103 days between his arrest and initial guilty plea, represents a total of 198 non-excludable days which passed between the filing of the complaint and the trial. Appellant concludes that since no motion was filed by trial counsel to dismiss the informations because of the Commonwealth's failure to bring appellant to trial within 180 days, appellant was denied effective assistance of trial counsel. We disagree.

Appellant's Rule 1100 argument is settled by our en banc decision in Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982). In Lewis, this court stated "that a withdrawal of a previously accepted plea of guilty was equivalent to the granting of a new trial, after which the Commonwealth was charged to bring the defendant to trial within 120 days." Id. at 66, 440 A.2d at 1225. See also Commonwealth v. Bytheway, 290 Pa.Super. 148, 152, 434 A.2d 173, 175 (1981).

Appellant's motion to withdraw his guilty plea was granted February 3, 1983; as a result the Commonwealth had 120 days within which to commence a new trial. Appellant's case was called to trial on May 10, 1983, well within the 120 day limit. Since counsel is not obligated to pursue frivolous or baseless claims, we find no ineffectiveness in counsel's failure to raise a motion to dismiss the informations on Rule 1100 grounds.

Appellant next argues there was no reasonable explanation for trial counsel's decision to allow appellant to take the stand and confess to the robbery and possession of a firearm. (N.T. May 10, 1983, at 37-40). Appellant claims the decision was per se ineffectiveness.

Our independent review of the record fails to indicate that appellant's taking the stand was anything but his own decision. In Commonwealth v. Pettus, 492 Pa. 558 424 A.2d 1332 (1981), our supreme court stated:

Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id. at 563, 424 A.2d at 1335. In the instant case, appellant fails to support his claim with specific facts. Nowhere does the record show appellant's desire not to take the stand. Other than simply stating that trial counsel put him on the stand, appellant offers no shred of evidence from which an inference could be drawn that his testimony was involuntary. Furthermore, given the weight of the evidence against the appellant, including the on-the-spot identifications and trial court testimony by the bank teller and bank manager, the photograph taken by the bank surveillance camera, and the testimony of the arresting officer and assisting officer, it was not unreasonable to conclude that appellant's only chance of acquittal would be to testify in his own defense. Cf. Commonwealth v. Johnson, 490 Pa. 312, 416 A.2d 485 (1980) (Given the strength of Commonwealth's case, defense counsel properly advised appellant to testify at trial.) Accordingly, we find no merit to appellant's contention that he was somehow coerced into taking the stand.

Because appellant raises several claims of ineffective assistance of counsel in defending appellant in connection with the robbery of the Concord Liberty Savings and Loan, the following facts, as determined at trial, are significant for our review: On August 26, 1982, appellant entered Concord Liberty Savings and Loan, and, while displaying a gun, demanded cash from the bank teller. The teller handed appellant $382. Upon receiving the cash, appellant placed the money into a shaving kit and fled. The bank manager, who witnessed the robbery, pursued appellant to...