Commonwealth v. Dumas
| Decision Date | 14 May 1982 |
| Citation | 299 Pa.Super. 335,445 A.2d 782 |
| Parties | COMMONWEALTH of Pennsylvania v. Julian DUMAS, Appellant. |
| Court | Pennsylvania Superior Court |
Argued June 11, 1980.
Athena M. Dooley, Philadelphia, for appellant.
Kenneth S. Gallant, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
Before BROSKY, CIRILLO and HOFFMAN, JJ.
Appellant Julian Dumas, was convicted at a non-jury trial of bribery tampering with a witness and criminal conspiracy. He filed post-verdict motions which were denied. Dumas was sentenced to three to eleven months imprisonment in Philadelphia County Prison on each charge. His sentences were to run concurrently. This appeal followed. We affirm.
Dumas contends on appeal that: (1) his trial counsel was ineffective; (2) the trial court abused its discretion in imposing too severe a sentence; (3) there was insufficient evidence to support a conviction; (4) his demurrers were improperly denied; (5) the trial court erred in admitting prejudicial evidence and the trial court abused its discretion in not granting a mistrial on the basis of the improperly admitted prejudicial evidence.
The record indicates that Dumas and his codefendant, David Bell conspired in an attempt to bribe Police Officer Edward Krystopa to testify falsely at a suppression case in which Bell was a defendant. [1] On February 7, 1977 and on February 14, 1977, Dumas met with the police to arrange for a bribe. On February 24, 1977, Dumas and Bell were arrested immediately after Bell gave Officer Krystopa $500 in an envelope. This comprised one-half of the bribe payment.
Dumas contends that his trial counsel was ineffective because counsel failed to request a severance of his case from that of codefendant. We do not agree.
In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967), our Supreme Court said:
We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, implying a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.
(Emphasis added.)
A trial court may be petitioned for severance of a trial. The decision of that court lies within its discretion and that decision will not be reversed absent an abuse of discretion by the court. The critical factor we examine in determining whether the court has abused its discretion is whether the moving party is prejudiced as a result of the trial court's decision. Commonwealth v. Iacino, 490 Pa. 119, 415 A.2d 61 (1980); Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980).
In Commonwealth v. Sindel, 205 Pa.Super. 355, 364, 208 A.2d 894, 899 (1965), we said:
As to Kulik, the statement charges him with the crime of abortion and not conspiracy to have Dr. Sindel perform an abortion, but there is nothing in the statement to establish a conspiracy between him and Dr. Sindel. Therefore any tacit admission by Kulik of the crime with which the statement charged him could not affect Dr. Sindel or the cases before us. However, we need not decide its effect on the defendant Kulik since we believe the ends of justice require that both appellants should be retried together and a new trial will include him as well as Dr. Sindel. Although coconspirators may be tried separately, Heine v. Commonwealth, 91 Pa. 145 (1879); Commonwealth v. Brown, 23 Pa.Super. 470 (1903), separate trials are not warranted under the circumstances of the present case.
It is apparent that had Dumas' counsel moved for severance of his client's trial from that of Bell, his likelihood of success was very small.
Nevertheless, trial counsel quite reasonably could have opposed making a request for tactical reasons. Dumas was being tried for conspiracy. Trial counsel could have determined that the joint trial would reflect favorably on his client. The record clearly indicates that counsel engaged in extensive cross-examination to prove that Dumas' role in the alleged crimes was significantly less than that of Bell. This distinction would be particularly clear at a joint trial. Accordingly, we are unable to find trial counsel ineffective.
Next, Dumas contends that the sentence he received was too severe. "The imposition of sentence is a matter vested in the sound discretion of the trial judge whose determination will not [be] disturbed in the absence of a manifest abuse of discretion." Commonwealth v. Williams, 274 Pa.Super. 464, 475, 418 A.2d 499, 505 (1980). See Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979); Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978). "Under the Sentencing Code, a sentence must be imposed for the minimum amount of time that is consistent with the gravity of the offense, the rehabilitative needs of the defendant and the protection of the public." Commonwealth v. O'Brien, 282 Pa.Super. 193, 196, 422 A.2d 894, 896 (1980). See also Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). "We may only order reconsideration where the sentencing judge has failed in his duties, either in a procedural sense, as for example failing to state the reasons for the sentence, or in a substantive sense, by imposing a manifestly excessive sentence." Commonwealth v. Doyle, 275 Pa.Super. 373, 390, 418 A.2d 1336, 1345 (1979). See Commonwealth v. Straw, 238 Pa.Super. 535, 361 A.2d 427 (1976). While the sentence received by Dumas was within the legal limits established in the sentencing code, we will not reach the merits of this issue having determined that Dumas failed to comply with Pa.R.Cr.P. 1410, which requires that a motion to modify a sentence be filed within ten days of the imposition of sentence. Accordingly, the issues is waived. Commonwealth v. Koziel, 289 Pa.Super. 22, 432 A.2d 1031 (1981). [2]
Dumas also contends that there was insufficient evidence to convict him of all counts. In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975), our Supreme Court said:
The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all the elements of the crime had been established beyond a reasonable doubt ... Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced .... The fact-finder is free to believe all, part, or none of the evidence .... (Citations omitted.)
The evidence read in such a light reveals that on February 7, 1977 Dumas approached Officer Stokes asking if he could do anything for Bell. Dumas told Stokes that in return for his help the officer could be helped in City Hall or given money. Stokes told Dumas he was not on Bell's case. Dumas asked Stokes if he would speak to the arresting officer. Stokes introduced Dumas to the arresting officer, Officer Krystopa, on February 14, 1977. Then, the arrangements for a bribe were made. Dumas orchestrated this meeting. An agreement was arranged. On February 24, 1977, Bell paid Krystopa a $500 bribe.
Bribing is defined at 18 Pa.C.S.A. § 4701 as:
§ 4701. Bribery in official and political matters
(a) Offenses defined.--A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
(1) ...
(2) any benefit as consideration for the decision, vote, recommendation or other exercise of official discretion by the recipient in a judicial, administrative or legislative proceeding; or ...
The evidence is clear that Bell conferred upon Officer Krystopa a $500 bribe. Bell was properly convicted of bribery. Dumas played an integral role in arranging for the payment of the bribe by Bell. Dumas was properly convicted under 18 Pa.C.S.A. § 306(c)(1)(i) and (ii).
Tampering with a witness was defined at the time of the commission of the offense as:
§ 4907. Tampering with witnesses and informants
(a) Offense defined.--A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a witness or informant to:
(1) testify or inform falsely;
(2) withhold any testimony, information, document or thing except on advice of counsel; ...
We are satisfied that Dumas' guilt was properly proven, on this count under 18 Pa.C.S.A. § 306(c)(1)(i) and (ii).
Conspiracy is defined in the Crimes Code at 18 Pa.C.S.A. § 903 as:
§ 903. Criminal conspiracy
(a) Definition of conspiracy.--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
We have repeatedly held that an agreement may be inferred from the acts and circumstances of the parties. Commonwealth v. Charles, 270 Pa.Super. 280, 411 A.2d 527 (1980); Commonwealth v. Kwatkoski, 267 Pa.Super 401, 406 A.2d 1102 (1979); In Interest of Gonzalez, 255 Pa.Super. 217, 386 A.2d 586 (197...
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