Commonwealth v. Bells
Commonwealth v. Bells
Opinion of the Court
Appellant was convicted following trial by jury of the following crimes and sentenced to imprisonment as stated: involuntary deviate sexual intercourse (7 to 15 years); kidnapping (consecutive 2 to 5 years); robbery (consecutive 1 to 3 years); and possession of an instrument of crime (concurrent 1 to 3 years). Convictions for theft and false imprisonment merged. Appellant filed post-trial motions which were subsequently argued and denied by the trial court. Appellant raises several issues in this appeal of his convictions and his sentence for involuntary deviate sexual
On August 25, 1986 at approximately 4:30 a.m., Laura Smith fell asleep behind the wheel of her parked car after dropping off a friend in the Germantown section of Philadelphia. Appellant walked past the victim’s car and seeing her asleep, entered the car on the driver’s side, pushing the victim over. Appellant held a knife in his hand and demanded jewelry and money. After giving appellant what she had, the victim begged him to let her go. When she reached for the door, appellant poked her with his knife and warned her he did not want to hurt her but he would. He also told Miss Smith he had a gun in the duffle bag which he was carrying. Appellant then drove the car to the end of the block where he ordered the victim into the back seat. There he forced her at knife point to perform oral and anal intercourse. Appellant then climbed back into the front seat and ordered the victim to join him because they were going for a drive. He drove around Germantown while he talked with her about the possibility of them seeing each other as “boyfriend and girlfriend.” When Miss Smith was unresponsive to appellant’s conversation, appellant threatened to sexually assault her again. He asked her to meet him that night at the Baby Grand Bar on Germantown Avenue at 11:00 p.m. He drove by the bar several times to show her where it was and forced her to promise to meet him there. When appellant finally got out of the victim’s car, he hugged and kissed her and demanded that she reciprocate. The whole ordeal lasted approximately two hours.
The victim described her attacker to police as a black man with facial hair, a dark complexion, slightly over six feet tall, approximately 170 pounds, with dark eyes, dark clothing, and approximately twenty-four or twenty-five years old. He also wore his long hair combed straight up and had
Appellant’s first contention is that the police lacked probable cause to arrest him and therefore, the evidence which resulted from this unlawful arrest should have been suppressed. We find the officers did have probable cause to arrest appellant; thus, there is no need to address the suppression issue. In determining the existence of probable cause, “ ‘[t]he crucial test is whether there were facts available which would justify a person of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator.’ ” Commonwealth v. Morris, 320 Pa.Super. 139, 145, 466 A.2d 1356, 1359 (1983), quoting Commonwealth v. Wilder, 461
Appellant’s second contention is that his trial counsel was ineffective for not entering a motion to exclude appellant’s prior criminal record so that he could testify on his own behalf without fear of impeachment. This claim is
Appellant also claims his counsel was ineffective for not raising the unconstitutionality of the sentence appellant received. Two arguments were raised. First, he argues the sentence should be set aside because the trial judge did not make a statement of the reasons and factors considered for the sentence imposed.
Appellant’s second argument is that the sentencing guidelines are invalid, therefore his counsel was ineffective for not raising the issue in post-verdict motions. This argument is based upon the recent decision by our Supreme Court in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). The Court found the sentencing guidelines were not adopted according to the requirements of the Pennsylvania Constitution under article III, § 9. Thus, the guidelines had “no force at all.” For a party to successfully argue the Sessoms decision applies to their case, however, the issue must have been “properly preserved at all stages of adjudication up to and including any direct appeal.” Sessoms, supra, 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2, quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). Since appellant did not properly preserve this issue, Sessoms is not applicable to his case.
Finally, appellant’s third claim is that the sentence of 7 to 15 years he received for his conviction on involuntary deviate sexual intercourse was excessive, thereby violating the VUIth and XIYth amendments to the Constitution. Involuntary deviate sexual intercourse has an offense gravity score of 9; appellant has a prior record score of 1. The applicable guideline ranges, therefore, inclusive of the deadly weapon enhancement, are as follows: minimum, 54-90 months; aggravated, 78-106 months; and mitigated, 43-66 months. Appellant’s sentence falls within the minimum range of the guidelines and is less than the statutory maximum of twenty years (18 Pa.C.S.A. § 3123; 18 Pa.C. S.A. § 1103(1)). The trial court has discretion in sentencing defendants and there was certainly no abuse of discretion here considering appellant’s history of criminal activity and the circumstances of the crimes at issue. Thus appellant’s claim is frivolous.
Judgment of sentence affirmed.
. Reasons for the sentence imposed must be placed on the record or the sentence may be set aside. Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982).
. We note the apparent dichotomy facing appellant — to argue a Sessoms challenge, the issue had to have been preserved in a lower court motion. However, Sessoms was not decided when this case was resolved by the trial court and sentence rendered. To hold counsel accountable in such a situation would mean that every issue decided by a court would have to be challenged as unconstitutional "just in case” it is later found to be unconstitutional by a subsequent higher court decision. Such a result is undesirable. Counsel may not be held to be ineffective for failing to anticipate changes in case law or legislation. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).
Concurring in Part
concurring and dissenting:
I join in the majority’s disposition of the issue involving probable cause, and concur in the disposition of the narrow issue presented in appellant’s ineffectiveness claim, that is
With respect to appellant’s claim that counsel should have questioned the constitutionality of the sentencing guidelines, I must point out that even if the claim of unconstitutionality had been raised by counsel at every point in the appellate process, that mere claim is not a password to appellate review of the merits of the case. I am of the opinion that merely stating that the Sentencing Guidelines are unconstitutional, without more, cannot raise a substantial question under Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The Sentencing Guidelines were never more than guidelines for the sentencing courts to follow; an abuse of discretion cannot be implied from the fact that a sentence was imposed under the guidelines before their invalidation. For this reason, I would find that failure to preserve the unconstitutionality argument here was not grounds for an ineffectiveness claim. Counsel cannot be found ineffective for failing to raise a meritless claim. Commonwealth v. Arthur, 488 Pa. 262, 265, 412 A.2d 498, 500 (1980); Commonwealth v. Jones, 365 Pa.Super. 57, 62, 528 A.2d 1360, 1363 (1987).
I dissent from the majority’s consideration of Bells’ claim that his sentence was excessive. I disagree with the majority decision in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), which held that an appellant’s failure to comply with Rule 2119(f) of the Pennsylvania Rules of Appellate Procedure and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. In my opinion, the majority in Krum has misinterpreted the
An appellant who challenges the discretionary aspects of sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.
This was reiterated in Tuladziecki: “It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Tuladziecki, 513 Pa. at 515, 522 A.2d at 20 (emphasis added). If a party does not first articulate those reasons, we cannot, according to the decision in Tuladziecki, go rummaging through the record and the merits of the issue raised to discover some substantial question. I therefore take issue with the decision in Krum, and would find appellant’s claim waived for failure to supply a 2119(f) statement of reasons relied on for appeal.
Further, had I, like the majority, been able to reach the merits of Bells’ claim, I would not have analyzed it by resorting to discussions of offense gravity scores. Given Sessoms, the only analysis needed to dispose of the abuse of discretion claim was the majority’s consideration of the appellant’s history of criminal activity and the circumstances of the crimes for which he was sentenced, and its statement that the sentence was less than the statutory maximum. Discussion of the offense gravity scores was unnecessary, although not necessarily incorrect. Even though the sentencing guidelines were declared to be void ab initio, they were never more than recommendations to
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Joseph BELLS, Appellant
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- 8 cases
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- Published