Commonwealth v. Greene

702 A.2d 547, 1997 Pa. Super. LEXIS 3234
CourtSuperior Court of Pennsylvania
DecidedSeptember 30, 1997
DocketNos. 02093 and 02094
StatusPublished
Cited by41 cases

This text of 702 A.2d 547 (Commonwealth v. Greene) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Greene, 702 A.2d 547, 1997 Pa. Super. LEXIS 3234 (Pa. Ct. App. 1997).

Opinions

BROSKY, Judge.

These consolidated appeals are from the orders of the lower court which imposed sentence and granted appellant leave to appeal from the judgment of sentence nunc pro tunc but otherwise denied appellant’s request for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541- § 9546.1 Appellant presents the following issues for review: (1) whether the sentencing court misapplied the deadly weapon enhancement in imposing sentence; (2) whether the method of selecting the pool of prospective jurors deprived appellant of his federal and state constitutional rights to a trial by a jury of his peers; (3) whether the evidence was sufficient to sustain appellant’s conspiracy conviction; (4) whether the trial court erred in admitting the hearsay statements of an alleged co-conspirator; (5) whether trial counsel was ineffective in failing to present an alibi defense; (6) whether trial counsel was ineffective in cross-examining the Commonwealth’s witnesses; and (7) whether trial counsel was ineffective in failing to adequately preserve appellant’s claims in post-trial motions. For the reasons set forth below, we vacate the judgment of sentence and remand for further proceedings consistent with this discussion.

This case has its genesis in a failed robbery attempt of Sobran’s jewelry store on December 1, 1993. Following investigation, arrest warrants for appellant, Orlando Greene, and his brother, Daniel Greene, were issued. Appellant was ultimately apprehended in April of 1994. Daniel Greene was not arrested until July, 1994, however. Although appellant and his brother were to be tried jointly, Daniel entered a guilty plea.2 Appellant filed an omnibus pre-trial motion which the trial court denied. Following a trial in February of 1995, the jury convicted appellant of the crimes of robbery,3 criminal conspiracy4 and receiving stolen property.5

The lower court sentenced appellant on March 30,1995 to an aggregate period of ten and one-half (10 1/2) to twenty-one (21) years of imprisonment.6 Post-sentencing motions were filed on appellant’s behalf by trial counsel, Sharon Wigle, Esq. The trial court denied appellant’s motions. Appellant asked counsel to file an appeal. However, the notice of appeal was defective and returned to Attorney Wigle. Counsel never refiled the notice of appeal.

New counsel, Eric Bononi, Esq. was subsequently appointed to represent appellant and filed a post-conviction petition on his behalf. After a hearing on the petition, the lower court reinstated appellant’s right to a direct appeal nunc pro tunc, but otherwise denied his request for relief. Appellant timely appealed.7

[551]*551Appellant first challenges the trial court’s application of the deadly weapon enhancement. This issue concerns the sentencing judge’s application of the Sentencing Guidelines and, hence, implicates the discretionary aspects of sentence. See, e.g., Commonwealth v. Bowen, 417 Pa.Super. 340, 345 n. 3, 612 A.2d 512, 514 n. 3 (1992), allocatur denied, 533 Pa. 629, 621 A.2d 577 (1993) (regarding sentencing court’s failure to apply deadly weapon enhancement as a challenge to the discretionary aspects of sentence). Unlike a challenge to the legality of sentence, there is no absolute right to direct appellate review of a discretionary sentencing claim. Commonwealth v. Hoag, 445 Pa.Super. 455, 458, 665 A.2d 1212, 1213 (1995). Rather, a party who desires to raise such matters must petition this court for permission to appeal and demonstrate that there is a substantial question that the sentence is inappropriate. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Hoag, supra; Commonwealth v. Dalberto, 436 Pa.Super. 391, 402, 648 A.2d 16, 21 (1994), allocatur denied, 540 Pa. 594, 655 A.2d 983 (1995), cert. denied, — U.S. —, 116 S.Ct. 75, 133 L.Ed.2d 34 (1995).

In fulfilling this requirement, the party seeking to appeal must include in his or her brief a concise statement of the reasons relied upon in support of the petition for allowance of appeal. Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Saranchak, 544 Pa. 158, 176, 675 A.2d 268, 277 (1996), cert. denied, — U.S. -, 117 S.Ct. 695, 136 L.Ed.2d 617 (1997); Commonwealth v. Dalberto, supra. Appellant has failed to comply with this requisite here. While this omission ordinarily would preclude our review of his claim, the Commonwealth has not objected to this defect. We will accordingly ascertain whether a substantial question exists based on the allegations set forth in appellant’s brief. Commonwealth v. Fusco, 406 Pa.Super. 351, 354, 594 A.2d 373, 374 (1991).

The determination of whether a substantial question exists must be made on a case-by-ease basis. Commonwealth v. Koren, 435 Pa.Super. 499, 503, 646 A.2d 1205, 1207 (1994). It is only where an aggrieved party can articulate clear reasons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. Commonwealth v. Dalberto, 436 Pa.Super. at 402, 648 A.2d at 22; Commonwealth v. Koren, 435 Pa.Super. at 503, 646 A.2d at 1207-1208. This court has been inclined to find that a substantial question exists where the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Dalberto, supra; Commonwealth v. Koren, 435 Pa.Super. at 503-504, 646 A.2d at 1208.

Appellant questions the sentencing court’s application of the deadly weapon enhancement. We have consistently deemed similar claims to present a substantial question for review. See Commonwealth v. Bowen, supra (trial court’s refusal to apply deadly weapon enhancement raised a substantial question for review). We will therefore address the merits of appellant’s sentencing claim.

The standard of review in sentencing matters is well settled. Imposition of a sentence is vested in the discretion of the sentencing eourt[, whose decision] will not be disturbed absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment.... [0]n appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Smith, 543 Pa. 566, 570-571, 673 A.2d 893, 895 (1996) (citations omitted). We will examine the sentencing court’s decision and appellant’s arguments in light of this standard.

Appellant asserts that he is not subject to the deadly weapon enhancement because the [552]

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Cite This Page — Counsel Stack

Bluebook (online)
702 A.2d 547, 1997 Pa. Super. LEXIS 3234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-greene-pasuperct-1997.