Commonwealth v. Gelormo

• Decision Date: 13 April 1984
• Parties: COMMONWEALTH of Pennsylvania v. Arthur GELORMO, Appellant. COMMONWEALTH of Pennsylvania v. Herbert THOMAS, Appellant.
• Court: Pennsylvania Superior Court

475 A.2d 765

327 Pa.Super. 219

COMMONWEALTH of Pennsylvania v. Arthur GELORMO, Appellant.

COMMONWEALTH of Pennsylvania v. Herbert THOMAS, Appellant.

Superior Court of Pennsylvania.

April 13, 1984

Argued Oct. 4, 1983. [Copyrighted Material Omitted]

David Del Pizzo, Asst. Public Defender Norristown, for appellants.

Joseph Hylan, Asst. Dist. Atty., Norristown, for Commonwealth appellee.

Before WICKERSHAM, WIEAND and LIPEZ, JJ.

WIEAND Judge:

Herbert Thomas and Arthur Gelormo were tried jointly on charges arising from a robbery on April 21, 1979 at the residence of Richard Tarus in Upper Providence Township, Montgomery County. The jury which heard the evidence found Gelormo guilty of robbery, burglary, theft, recklessly endangering another person, terroristic threats and conspiracy. The same jury found Thomas guilty of criminal conspiracy. Post-verdict motions were denied, and sentences of imprisonment were imposed. Separate appeals were filed and consolidated for argument. We will consider the following arguments advanced by both appellants: (1) that the trial court should have quashed the informations because the District Justice denied a defense request to continue the preliminary hearing in order to allow defendants additional time within which to employ the services of a stenographer; (2) that the trial court erred in denying a defense request for the appointment of an independent, ballistics expert; and (3) that the trial court erred in refusing to order the prosecuting attorney to obtain during trial an amended plea agreement entered by a Commonwealth witness and the District Attorney of Chester County. ^[1] Thomas argues separately that he was prejudiced by the trial court's erroneous denial of his pre-trial motion for severance and by an excessive sentence. We will discuss these issues seriatim.

At or about 1:00 a.m. on April 21, 1979, according to the Commonwealth's evidence, Gelormo entered the Tarus home wearing a stocking over his head and brandishing a pistol. He ordered Tarus' house guest, Kevin Darula, to bind Tarus with the telephone cord; and, after this had been accomplished, he ordered Darula to remove a valuable ring and cash from Tarus' person. When Tarus protested, Gelormo discharged the weapon. Darula thereupon took the ring and money from Tarus and handed it to Gelormo, following which Gelormo locked Darula in the cellar and fled. The robbery remained unsolved for almost two years until Richard Falasco, who had been arrested with Gelormo for numerous offenses in Chester County, gave a statement regarding the Tarus robbery. He said that Thomas had supplied the gun used by Gelormo in the Tarus robbery while he, Falasco, had driven Gelormo to Tarus' home and waited with the car while Gelormo entered the home. After the robbery had been committed, Falasco and Gelormo returned to a bar operated by Thomas and gave him the ring. This was later sold for $1,250, which was divided among the men.

Criminal complaints were filed before District Justice Dorine Sutch, who scheduled a preliminary hearing for March 12, 1981. On that day, the defendants appeared with counsel and requested a postponement so that they might obtain the presence of a stenographer. ^[2] The request for a continuance was denied, and the preliminary hearing proceeded. After the case had been returned to court and informations filed, the defendants moved to quash the informations on grounds that the denial of their motion to continue the preliminary hearing had deprived them of the right to have the proceedings recorded stenographically. The trial court concluded that the District Justice's denial of the defendants' motion for a continuance had not been an abuse of discretion and had not violated the defendants' rights to due process. Therefore, the motion to quash the information was denied.

Pa.R.Crim.P. 142 provides that a District Justice "may" grant a continuance of the preliminary hearing "for cause shown." ^[3] Whether to grant a motion for continuance is discretionary with the District Justice, and an order granting or refusing a continuance of a preliminary hearing will not be disturbed in the absence of an abuse of discretion.

Pa.R.Crim.P. 141 provides in relevant part as follows:

(c) The defendant ... may, if he desires:

....

(4) make written notes of the proceedings, or have his counsel do so, or make a stenographic, mechanical or electrical record of the proceedings.

If appellants had arranged to have a stenographer present, there can be no doubt that the stenographer would have been permitted to record the proceedings. See: Wilson v. Blake, 475 Pa. 627, 381 A.2d 450 (1977). In fact, however, appellants did not make the necessary arrangements, and a stenographer was not present to record the proceedings. Their failure to have a stenographer present was not explained. Indeed, it was not shown that they had made any effort whatsoever to obtain a stenographer. Moreover, they had made no pre-preliminary hearing request for a stenographer. ^[4] Nor had they made an effort to record the testimony mechanically or electrically. Instead, appellants appeared at the preliminary hearing, where the Commonwealth was ready to proceed, and made a last minute request for a continuance. There was no abuse of discretion in denying such a request. The lack of a transcript of a preliminary hearing is not, per se, a denial of due process. Commonwealth v. Hampton, 462 Pa. 322, 329, 341 A.2d 101, 105 (1975), citing Commonwealth v. Minifield, 225 Pa.Super. 149, 310 A.2d 366 (1973); Commonwealth v. Walley, 262 Pa.Super. 496, 503, 396 A.2d 1280, 1284 (1978). In this case, appellants' counsel were present and were permitted to take notes during the preliminary hearing. The denial of a continuance to provide additional time to arrange for the presence of a stenographer, therefore, was not a violation of due process.

Under the law of Pennsylvania, as in a majority of states, the appointment of an expert witness or an investigator to assist in the preparation of a defense is vested in the sound discretion of the trial court. ^[5] See: United States ex rel. Dessus v. Commonwealth, 316 F.Supp. 411, 418 (E.D.Pa.1970), aff'd, 452 F.2d 557, 563 (1971), cert. denied, 409 U.S. 853, 93 S.Ct. 184, 34 L.Ed.2d 96 (1972); Commonwealth v. Box, 481 Pa. 62, 64-65, 391 A.2d 1316, 1317 (1978), aff'g Commonwealth v. Box, 98 Dauph. 446, 451 (1976); Commonwealth v. Scott, 469 Pa. 258, 263-264, 365 A.2d 140, 142-143 (1976); Commonwealth v. Phelan, 427 Pa. 265, 275-276, 234 A.2d 540, 546-547 (1967), cert. denied, 391 U.S. 920, 88 S.Ct. 1803, 20 L.Ed.2d 657 (1968), overruled on other grounds, Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976); Commonwealth v. Rochester, 305 Pa.Super. 364, 381, 451 A.2d 690, 699 (1982). See and compare: State v. Knapp, 114 Ariz. 531, 540, 562 P.2d 704, 713 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978); Pickens v. State, 279 Ark. 457, 458, 652 S.W.2d 626, 626 (1983); People v. Hunt, 133 Cal.App.3d 543, 554, 184 Cal.Rptr. 197, 202 (1982); Wilson v. State, 250 Ga. 630, ---, 300 S.E.2d 640, 645 (1983); State v. Olin, 103 Idaho 391, 395, 648 P.2d 203, 207 (1982); Griffin v. State, Ind., 415 N.E.2d 60, 63 (1981); State v. Reynolds, 230 Kan. 532, 534, 639 P.2d 461, 464 (1982); Commonwealth v. Dalton, 385 Mass. 190, 195, 431 N.E.2d 203, 207-208 (1982); State v. Suggett, 200 Neb. 693, 697, 264 N.W.2d 876, 879 (1978); State v. Alford, 298 N.C. 465, 469, 259 S.E.2d 242, 245 (1979); State v. Archambeau, 333 N.W.2d 807, 811 (S.D.1983); Quinones v. State, 592 S.W.2d 933, 942-943 (Tex.Cr.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980); Jackson v. State, 624 P.2d 751, 755-756 (Wyo.), cert. denied, 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981). See generally: Anno., Right of Indigent Defendant in Criminal Case to Aid of State by Appointment of Investigator or Expert, 34 A.L.R.3d 1256 (1970). For the reasons hereinafter set forth, we conclude that the trial court did not abuse its discretion in denying appellants' request for the appointment of an independent ballistics expert.

A spent .32 caliber bullet casing had been found at the Tarus home by police investigators following the robbery. At trial, a 7.65 mm. pistol was produced by the Commonwealth and identified by Falasco as the gun which Thomas had given to Gelormo for use in committing the robbery. However, there was no ballistics evidence connecting the .32 casing with the 7.65 mm. gun.

After the spent casing had been found, it was sent to the State Police Crime Lab for examination. It was there determined that the bullet had been fired from a 7.65 mm. pistol which had been used in two Chester County robberies allegedly perpetrated by appellants. Copies of these ballistics reports had been supplied to counsel for appellants in the Montgomery County action. It was these reports which had prompted defense counsels' request for the appointment of an independent ballistics expert to make an additional test. Such an expert was needed, they represented to the court, to verify or contradict the findings of the Commonwealth's experts. The prosecuting attorney argued that verification or contradiction would be unnecessary because the Commonwealth did not intend to use the ballistics evidence at trial. The trial court thereupon refused the request.

Appellants had been given copies of the Commonwealth's ballistic reports and knew the results of the tests which had been conducted. It was not an abuse of discretion for the trial court to refuse to order an additional test. See Commonwealth v. Phelan, supra. See also: Moore v. State, 240 Ga. 807, 813, 243 S.E.2d 1, 6-7, cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 249 (1978) (appella...