*1 Pennsylvania COMMONWEALTH of BELLS, Joseph Appellant.
Superior Pennsylvania. Court of
Submitted Feb. 1988. April Filed *2 Robbins, appellant. for Philadelphia, Robert S. Philadel- Zucker, Attorney, District Donna G. Assistant Com., appellee. phia, CIRILLO, and TAMILIA and Judge,
Before President HESTER, JJ.
TAMILIA, Judge: trial following by jury
Appellant convicted was stated: imprisonment as following crimes and sentenced to (7 kid- years); involuntary deviate sexual intercourse (consecutive (consecutive robbery 5to napping years); crime an instrument of possession years); false for theft and (concurrent 1 to 3 Convictions years). filed motions post-trial imprisonment merged. Appellant trial and denied subsequently argued which of his appeal in this Appellant raises several issues court. involuntary sexual his sentence for deviate convictions and can summarily intercourse. These issues be stated as fol- 1) cause; upon probable his arrest was based lows: whether ineffective; 3) counsel 2) his trial was whether whether deviate sexual intercourse involuntary his sentence for excessive. a.m., 1986 at 4:30 August approximately
On Laura asleep parked fell behind the wheel her car after Smith off a friend in the dropping Germantown section of Phila- Appellant past walked the victim’s car and delphia. seeing side, entered the car on the asleep, pushing her driver’s victim over. held knife his hand and demand- money. giving ed After jewelry appellant what she had, begged him to let go. victim her When she door, appellant poked reached for the her with his knife and her he did not to hurt her warned want but he would. He gun also told Miss Smith he had a the duffle bag which *3 carrying. Appellant he was then drove the car to the end of the block he ordered where the victim into the back seat. There he forced point perform her at knife oral and anal intercourse. then climbed back into the front seat and ordered the him join victim to they because going for a drive. He drove around Germantown while he talked her with about the of them possibility seeing each other as “boyfriend girlfriend.” and When Miss Smith was unresponsive conversation, to appellant’s appellant threat- ened to sexually again. assault her He asked her to meet him night the Baby at Grand Bar on Germantown Avenue at p.m. 11:00 He drove the by bar several times to her show where it was and forced her promise to meet him there. appellant finally got When out of the victim’s car, hugged he and kissed her and demanded that she reciprocate. The ordeal approximately whole lasted two hours. police victim described her attacker to as a black man hair,
with facial a dark complexion, slightly over six feet tall, pounds, approximately eyes, with dark dark cloth- ing, and approximately or twenty-four twenty-five years old. He also wore his hair long straight up combed and had agreed odor. The victim
very strong body police with the in of the Baby her car front Grand Bar at 11:00 that park staked out the night police while area. She was to turn off headlights signal as a to the police her officers whenever During appellant. she saw the the stake-out several black car past men her as the from walked officers watched she gave signal. Finally, unmarked vehicles but never the the description, walking who fit appellant, toward p.m. 11:00 As he just approached before the bar he bar police direction of the looked vehicle and then turned reaching onto a sidestreet before bar. The victim did officers, however, this time either. give signal Two appellant to be the attacker on the believing based previous description, followed the their victim’s stopping alongside for a distance before him. car short of their car and identified They got police out themselves as approached appellant officers. As they they immediately a odor and noticed a strong bulge appellant’s smelled under pat-down shirt. One of the officers conducted a search fitting description which uncovered a knife-like tool given pat Miss Smith. A further down uncovered stolen from the Miss rings which had been victim. Smith positively rings. identified the The next month knife she identified as her attacker lineup viewed despite closely the fact that at this time his hair was cropped and he had shaved. that the lacked
Appellant’s police first contention is therefore, him probable cause to arrest the evidence *4 which resulted from this unlawful arrest should have been suppressed. probable find the officers did have cause We thus, appellant; to arrest there is no need to address the proba In the existence of suppression determining issue. “ cause, ble crucial test is whether there were facts ‘[t]he justify person which would a caution available reasonable in the that a crime had committed and that the belief been ” arrested the probable perpetrator.’ individual was Com Morris, 139, 145, 320 Pa.Super. monwealth v. 466 A.2d 1356, (1983), quoting Wilder, 1359 v. 461 Commonwealth
61 564, (1975). test, 597, 600, Using A.2d 566 this we 337 Pa. police the officers with suffi- provided Miss Smith conclude appellant to the officers’ belief that was cient facts warrant her. The was in the one who assaulted the he had instructed the victim to meet location where precise time. designated gave police him the The victim a at description of her attacker as well as a physical detailed unusual knife he description description carried. The large not of the kind which would to a apply was number enough it detailed to people; provide was substantial to police pick many for the out from the basis men who were the area of the Grand Bar that Baby black Reel, Commonwealth v. 381, In night. Pa. A.2d (1982) Pennsylvania Supreme Court stated there is cause to arrest an probable eyewitness gives when a de- physical description tailed of the actor which leads the that a certain police person believe is the described actor. description provided insists the Miss by Smith precise enough and that men in that many was area Philadelphia given fit the This description. argument over- looking looks fact the officers were for a man of these only characteristics at the Bar at Baby p.m., Grand 11:00 the appointed Although rendezvous time. we believe the description provided in this case suffi- victim was cient, alone, standing probable as a basis for cause to arrest appellant, totality police circumstances which facing must justi- be considered. “Facts insufficient an arrest if fy may considered combination separately Verdekal, Commonwealth probable supply cause.” 420, Pa.Super. The detailed description given by plus Miss Smith of her attacker fact this man Baby p.m. be at the Grand Bar at 11:00 supplied police give with sufficient information to them probable cause to arrest appellant.
Appellant’s second is that his trial counsel contention entering appel was ineffective for not a motion to exclude lant’s criminal prior testify record so that he could on his own behalf without fear of This claim is impeachment.
62
merit, however, since
convic-
appellant’s previous
without
theft,
(e.g.
at-
involving dishonesty
for crimes
tions were
theft).
the standard set forth
Under
Common-
tempted
410,
Randall,
(1987)
raising the First, argues were raised. he arguments received. Two judge set aside the trial did the sentence should be because of the reasons and factors considered not make a statement merit; a imposed.1 totally This is without for the sentence sentencing transcript of the shows simple review of the crimes upon his decision the heinousness judge based incorrigibility Miss Smith and the against committed appellant. sentencing is argument second
Appellant’s
invalid,
ineffective
therefore his counsel was
This
post-verdict
the issue in
motions.
raising
not
Supreme
the recent decision
our
argument
upon
is based
365,
Sessoms, 516 Pa.
v.
Court Commonwealth
(1987).
sentencing guidelines
found the
775
Court
Pennsyl
to the
adopted according
requirements
not
Thus,
III,
the guide
under article
vania Constitution
§
successfully
all.” For a
party
lines had “no force at
however,
case,
argue
applies
decision
to their
Sessoms
stages
preserved
must
at all
“properly
the issue
have been
including
appeal.”
to and
direct
adjudication up
any
2,
2,
Sessoms,
n.
A.2d at 782 n.
Judgment of sentence affirmed.
CIRILLO, Judge, a concurring President filed dissenting opinion.
CIRILLO, Judge, concurring dissenting: President disposition I in the join majority’s involving of the issue in probable cause, disposition and concur narrow claim, presented appellant’s issue ineffectiveness that is facing apparent dichotomy argue 2. We note the a Ses- —to challenge, preserved soms issue had to have been in a lower court However, motion. was Sessoms not decided when this case by resolved court and the trial sentence rendered. To hold counsel every accountable in a situation that such would mean issue decided by challenged "just a court would have to be as unconstitutional by higher subsequent it is later be case” found to unconstitutional may court decision. a result is not be Such undesirable. Counsel failing anticipate changes to be or held for to in case law ineffective legislation. Triplett, 476 Pa. Commonwealth say, finding that counsel ineffective for failure to raise a Sessoms when Sessoms had not yet argument in this case inappropriate decided be since been would we cannot hold attorneys responsible predicting changes in the law. However, my analysis because of the sentencing issue dif- I majority, fers from that of the write separately clarify on the my position implicated broader concerns by appel- argument. lant’s ineffectiveness I also express must my dissent from the majority’s analysis of appellant’s claim the sentence him imposed upon was excessive. respect appellant’s
With
claim that counsel should have
questioned the
constitutionality
the sentencing guide
lines, I
point
must
out that
if
even
the claim of unconstitu
tionality had
been raised
counsel at every point in the
*7
appellate process,
that mere claim
password
is not a
appellate review of the merits of the
I
case.
am of the
opinion
stating
that merely
Sentencing
that
the
Guidelines
unconstitutional,
more,
without
cannot raise a substan
Tuladziecki, 513
Commonwealth v.
question
tial
under
Pa.
508,
(1987).
I dissent from the majority’s Bells’ consideration of claim that his sentence was excessive. I disagree with the majori- Krum, Commonwealth v. ty decision in Pa.Super. 511, (1987) (en banc), appellant’s which held that an failure to comply 2119(f) with Rule of the Pennsylvania Tuladziecki, Rules of Appellate Procedure if not object- ed to the appellee, is procedural a waivable In violation. my opinion, the Krum has in majority misinterpreted Krum, 367 in See decision Tuladziecki. court’s supreme J., dissent- 523-524, (Brosky, 533 A.2d at Pa.Super. at 2119(f), supreme specified court has In Pa.R.A.P. ing). seeking an review manner in which our court aspects petition of sentence must discretionary 9781(b): appeal of under Pa.C.S. allowance for an § of challenges discretionary aspects appellant who An in his a criminal matter shall set forth brief in a sentence relied for allow- upon of the reasons concise statement respect discretionary aspects with to the appeal ance immediately shall precede The statement sentence. respect discretionary with to the argument on merits of sentence. aspects “It is a only in Tuladziecki: where
This was reiterated a sentence why particular can reasons party articulate compro- has been that this scheme as a whole raises doubts in the manner appellate that the court should review mised Tuladziecki, court exercised its discretion.” which trial added). If (emphasis party at at 20 a 513 Pa. reasons, cannot, according articulate those we does first through the Tuladziecki, go rummaging the decision some the issue raised to discover record the merits of take with the deci- I therefore issue question. substantial Krum, claim appellant’s sion find waived would 2119(f) on for failure to statement reasons supply relied appeal.
Further, I, reach the had like the been able to majority, claim, it by of I not analyzed merits Bells’ would have resorting gravity to discussions of offense scores. Given Sessoms, of the abuse only dispose needed analysis of the of discretion claim consideration majority’s the circumstanc- activity of criminal appellant’s history sentenced, es he was and its of crimes for which less the statutory than statement sentence was gravity scores was maximum. Discussion of the offense incorrect. Even although necessarily unnecessary, void though were declared be sentencing initio, more than recommendations they ab were never sentencing court to in its aid determination sentence. mention appropriate of them in connection analysis possible with the abuse of discretion on the part sentencing court is not I would only fatal. whether or caution that not a sentencing court has abused its discretion cannot be decided solely from an examination guidelines. now-defunct KITRELL, Appellee,
Vernette DAKOTA, Appellant. Juan R.
Superior Pennsylvania. Court
Argued Oct. 1987. April Filed