368 A.2d 736 | Pa. Super. Ct. | 1976
Lead Opinion
This is an appeal from the judgment of sentence imposed on appellant Charles Fisher following his conviction of possession of a prohibited offensive weapon.
Initially, appellant claims that the verdict was based on insufficient evidence and contrary to the weight of the evidence. The testimony at trial established that appellant and two other individuals were observed by two police officers who were patrolling downtown Reading at -3:80 in the morning. One of the officers testified that they approached the trio and asked them their iden
Next, appellant argues that a mistrial should have been granted when upon the close of the Commonwealth’s case, one of the deputies moved the weapon away from the witness stand as appellant approached the stand to testify. If there was anything improper with this procedure, we are satisfied that it did not constitute such prejudice as would warrant the granting of a mistrial.
Appellant also claims that trial counsel was ineffective for not filing a motion to suppress the weapon. First, it is apparent that a motion to suppress would have had little chance of success; counsel therefore cannot be considered ineffective for not filing one. Com
Finally, appellant complains that his sentence of one to three years, which was ordered to run consecutively with sentences he had received for other convictions, was excessive. It is well-settled that the sentence to be imposed upon a convicted defendant is within the sole discretion of the sentencing judge. See, e. g., Commonwealth v. Williams, 456 Pa. 550, 317 A.2d 250 (1974); Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970); Commonwealth v. Rodriquez, 229 Pa.Super. 449, 323 A.2d 396 (1974). If the sentence imposed is within statutory limits, we should not find an abuse of discretion unless the sentence imposed is so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Johnson, 235 Pa.Super. 185, 340 A.2d 515, allocatur refused, 235 Pa.Super. xxvii (1975); Commonwealth v. Riggins, 232 Pa.Super. 32, 332 A.2d 521 (1974). The sentence imposed was clearly within the maximum provided by the Legislature, and our review reveals no abuse of discretion. We therefore will not disturb the sentence which the lower court saw fit to impose.
Judgment of sentence affirmed.
. Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 908 (1973).
Concurrence in Part
concurring and dissenting:
I concur in the Majority’s disposition of appellant’s claim that the Commonwealth presented sufficient evidence to sustain a conviction of possession of a prohibited offensive weapon.
I agree that counsel is not required to file a motion to suppress if such a motion has little chance for success. Commonwealth v. Fisher, 243 Pa.Super. 128, 364 A.2d 483 (filed September, 1976); Commonwealth v. Hill, 231 Pa.Super. 371, 331 A.2d 777 (1974). The issue at a suppression hearing is whether the police had probable cause for a stop and whether the police intrusion upon the liberty of an accused was reasonable. U.S.Const. Amendment IV; see also, Rule 323, Pa.R.Crim.P., 19 P. S. Appendix. The Majority relies on the trial transcript to determine that a motion to suppress would have had no merit. However, at trial, the only finding is on the question of guilt or innocence of the accused. The fact-finder does not decide issues of probable cause or reasonableness. The factfinder may, indeed, have believed all of the police testimony, including evidence concerning the circumstances surrounding the arrest. On the other hand, the factfinder may have believed that appellant was guilty of the crime charged, but not have considered the issue of reasonableness of the police conduct, or have discredited police testimony concerning the search. We do not know what the factfinder concluded- on the issue which the Majority resolves against the accused by its own selective reading of the record and de novo factfinding. That exercise of review is improper.
. Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 908.