Commonwealth v. Roberts

630 A.2d 869, 428 Pa. Super. 156, 1993 Pa. Super. LEXIS 2101
CourtSuperior Court of Pennsylvania
DecidedJune 30, 1993
Docket01124
StatusPublished
Cited by6 cases

This text of 630 A.2d 869 (Commonwealth v. Roberts) 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. Roberts, 630 A.2d 869, 428 Pa. Super. 156, 1993 Pa. Super. LEXIS 2101 (Pa. Ct. App. 1993).

Opinions

HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was found guilty, at the conclusion of a nonjury trial, of robbery,1 criminal conspiracy,2 and possession of instruments of crime.3 Appellant was sentenced to consecutive terms of not less than two (2) years nor more than five (5) years on the charge of robbery, and ten (10) years probation on the charge of criminal conspiracy. A verdict of guilty without further penalty was ordered on the possession [158]*158of instruments of crime conviction. Subsequently, Appellant filed a motion for reconsideration of sentence which was denied. This direct appeal followed. For the following reasons, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.

Thé facts leading to these convictions may be summarized as follows: On October 80, 1991, at approximately 1:30 a.m., Sean Robertson, a student at the University of Pittsburgh, was walking home on South Bouquet Street in the Oakland section of Pittsburgh, Pennsylvania, after visiting his girlfriend in her dormitory room on campus. Shortly after passing the University of Pittsburgh School of Law, and near a well-lighted parking lot, Robertson was approached from behind by two black males. One of the black males, Kevin Roberts (hereinafter, “Appellant”), took a few steps in front of Robertson and then turned around. Appellant, simultaneously, pulled out a kitchen knife with a 10-12 inch blade and a wooden handle and ordered Robertson to give him his money. While Appellant spoke to Robertson, Appellant’s confederate, John Thompson, proceeded to check Robertson’s jacket and pants pockets. He removed from Robertson a pack of Viceroy cigarettes, keys and Robertson’s student I.D. The keys were subsequently placed back in Robertson’s pocket. Robertson was not carrying any money. While this incident was occurring, Officer Curtis Smith, of the University of Pittsburgh Campus Police Department, passed the three individuals on the street in his marked patrol unit. He slowed down to observe what was transpiring as he was suspicious of the very close proximity of the three individuals and the distressed look on Robertson’s face. Officer Smith proceeded down the street, turned his vehicle around and returned to where he had seen the three individuals standing. At this point, Appellant and his friend began to run away from Robertson. Robertson flagged down the police vehicle and related to Officer Smith what had just happened. He also described the individuals and the items which had been taken from him. Officer Smith immediately pursued Appellant and Thompson across a University parking lot, finally stopping them approximately [159]*159two minutes later on Oakland Avenue for questioning. Officer Smith recognized the two males as the individuals whom he had viewed only minutes earlier with Robertson. Robertson’s cigarettes and student I.D. were found in Thompson’s possession. The knife was later found approximately forty yards away in the parking lot which Appellant and Thompson had traversed. Appellant and Thompson were transported to the University of Pittsburgh Campus Police station where they were identified by Robertson and then subsequently delivered to the City of Pittsburgh Police.

On appeal, the sole issue raised by Appellant is whether trial counsel was ineffective for failing to move to suppress the identification of Appellant as the fruit of an illegal arrest.

Claims of ineffectiveness of counsel are subject to a three-part analysis:

First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client.... The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. [Citations omitted.]

Commonwealth v. Nelson, 389 Pa.Super. 417, 420, 567 A.2d 673, 676 (1989). To prove prejudice from the ineffectiveness, Appellant must show that counsel’s errors had an adverse effect on the outcome of the trial. Commonwealth v. Boyles, 407 Pa.Super. 343, 358, 595 A.2d 1180, 1188 (1991), alloc, den., 531 Pa. 651, 613 A.2d 556 (1992). “An appellant must show that the error was ‘so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.’ ” Boyles, 595 A.2d at 1188 (quoting Commonwealth v. Morocco, 375 Pa.Super. 367, 371, 544 A.2d 965, 967 (1988), alloc. den., 520 Pa. 615, 554 A.2d 508 (1989)). Furthermore, trial counsel cannot be found to have rendered ineffective assistance of counsel for failing to pursue a course of action that had no arguable merit. Commonwealth v. Black, 398 Pa.Super. 364, 365, 580 A.2d 1391, [160]*1601392 (1990), alloc. den., 527 Pa. 628, 592 A.2d 1296 (1991). We . shall address Appellant’s claim of ineffectiveness keeping these standards in mind.

As noted above, Appellant contends that trial counsel rendered ineffective assistance of counsel for failing to file a motion to suppress the identification of Appellant which was made subsequent to an illegal arrest. Appellant argues that the arrest was illegal because Officer Smith, a campus police officer, acted beyond the limits of his jurisdiction in making the arrest, as both the incident in question and the arrest occurred off campus. Conversely, the Commonwealth contends that the events in question did occur on and/or immediately adjacent to University property. Commonwealth brief at p. 13. Accordingly, the Commonwealth concludes that Officer Smith had jurisdiction to effectuate the arrest of Appellant. In the alternative, the Commonwealth argues that, even if the events in question and the arrest occurred on the city streets and not on campus property, because of the noncontiguous nature of the University of Pittsburgh campus and because the layout of the campus necessitates that campus police drive on city streets among various private commercial enterprises and residential properties while on routine patrol, Officer Smith had an affirmative duty when he saw a felony committed on his patrol to pursue the perpetrators.

After examining the record and Appellant’s argument, we are constrained to conclude that there is arguable merit in Appellant’s contention that trial counsel was ineffective. See 71 P.S. § 646(h) (“Security and Campus Police shall exercise their powers and perform their duties only on the premises of the State colleges and universities, State aided or related colleges and universities and community colleges by or for which they are employed ... except, that Campus Police employed by State owned colleges and universities located in any municipalities, other than cities of the first class or second class, are authorized, in emergency situations occurring within the municipality, upon the request of the mayor or other executive authority and under the direction of the local law enforcement authorities, to exercise those powers and perform [161]

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Related

Commonwealth v. Roberts
681 A.2d 1274 (Supreme Court of Pennsylvania, 1996)
Commonwealth v. Davis
652 A.2d 885 (Superior Court of Pennsylvania, 1995)
Commonwealth v. Bishop
645 A.2d 274 (Superior Court of Pennsylvania, 1994)
Commonwealth v. Roberts
630 A.2d 869 (Superior Court of Pennsylvania, 1993)

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Bluebook (online)
630 A.2d 869, 428 Pa. Super. 156, 1993 Pa. Super. LEXIS 2101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-roberts-pasuperct-1993.