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COMMONWEALTH PENNSYLVANIA v. RONALD DESSUS (12/29/78)

decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
RONALD DESSUS, APPELLANT



No. 859 October Term, 1977, Appeal from Judgment of Sentence imposed on January 12, 1977, in the Court of Common Pleas, Criminal Division of Montgomery County, at No. 885 January Term, 1976.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.

James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 262 Pa. Super. Page 448]

This appeal is from a judgment of sentence which was imposed following the conviction of appellant, Ronald Dessus, on four assault charges.*fn1 Already serving a term of imprisonment for life, appellant was sentenced to a concurrent life term. He now appeals from that sentence, and raises eleven allegations of error.*fn2 Those issues, briefly stated, are as follows: 1) the mandatory life sentence required upon conviction of assault by life prisoner*fn3 violates the United States and Pennsylvania Constitutions; 2) the trial court erred by permitting cross-examination of defense witnesses regarding prior criminal records; 3) the trial court erred by excluding a physician's letter and precluding pretrial discovery of the victims' personnel and medical records; 4) trial counsel was ineffective for failing to subpoena the physician and the personnel and medical records; 5) a biased and confusing jury charge denied appellant a fair trial; 6) the use of a non-attorney district justice in appellant's preliminary hearing denied him due process; 7) appellant's

[ 262 Pa. Super. Page 449]

    demurrer was erroneously denied because the Commonwealth failed to introduce sufficient evidence to support the charges of aggravated assault and assault by life prisoner; 8) the trial court erred in denying individual voir dire on the subject of racial prejudice; 9) the trial court improperly denied defense motions to subpoena all prison records regarding other assaults by prisoners; 10) trial counsel was ineffective for failing to personally subpoena the records; and 11) the trial court improperly denied appellant's challenge to the jury selection process of Montgomery County. Because we find all of appellant's arguments to be without merit, we affirm the decision of the lower court.

Appellant was convicted as a result of a scuffle which occurred at the State Correctional Institution at Graterford. During his confinement, appellant earned a high school diploma and a bachelor's degree. He was qualified to teach several courses to fellow inmates, one of which was typing. On January 26, 1976, appellant was preparing to begin the typing course. He found the typing classroom padlocked, and went to the prison school office to inquire into the situation. During an exchange of words, appellant became provoked and assaulted two of the teachers present in the room. One of the teachers, John Moskal, was knocked unconscious and sustained extensive injuries, which have required lengthy rehabilitation. The other victim, Ernest Bello, suffered a fractured cheek and was hospitalized for several days.

I

Appellant's first argument goes to the constitutionality of the mandatory life sentence imposed upon conviction of assault by life prisoner. He contends that a mandatory life sentence violates the Eighth and Fourteenth Amendments of the United States Constitution and Article 1, Section 13 of the Pennsylvania Constitution because it fails to allow for consideration of mitigating or aggravating circumstances surrounding the individual offender's charge. Although appellant attempts to distinguish it, the case of

[ 262 Pa. Super. Page 450]

    in the nature of crimen falsi to impeach the credibility of a witness." Commonwealth v. Katchmer, 453 Pa. 461, 464, 309 A.2d 591, 593 (1973). The crimes of which the defense witnesses were convicted certainly fit within the classification of admissible crimes. The lower court did not, therefore, err when it permitted questioning into the witnesses' backgrounds.

III

The third argument advanced by appellant concerns the decisions of the lower court to exclude a letter written by a physician and to deny pretrial discovery of certain prison records. The letter in question, found in prison employment files, was written by a physician who had treated one of the victims, John Moskal. It was offered by appellant to show that the injuries sustained by Moskal were not as serious as he had implied during testimony.*fn6 Appellant's basis for admitting the letter is the Pennsylvania Uniform Business Records as Evidence Act of 1939, May 4, P.L. 42, No. 35, §§ 1-4, 28 P.S. §§ 91a-d Section 91b provides:

A record of an act, condition or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

He contends that the letter qualifies as a business record in that it was "filed in the normal course of prison business adjunct to Moskal's claim for workmen's compensation." Appellant's Brief at 15. However, the custodian of the records at Graterford could not show that the letter had been so prepared. Appellant's offer of proof as to the custodian's proposed testimony failed to show the mode of

[ 262 Pa. Super. Page 452]

    the letter's preparation or the authenticity of the physician's signature. Lower court opinion at 16. Moreover, even if the validity of the writing could have been shown, the custodian was unable to testify "that the writing was actually made . . . at or near the time of [the physician's] examination of the individual in question [nor] that it was his custom in the regular course of his professional practice to make such a record." Masterson v. Pennsylvania R. Co., 182 F.2d 793, 797 (3d Cir. 1950). That case, and Cromling v. Pittsburgh and Lake Erie R. R. Co., 327 F.2d 142 (3d Cir. 1964) have held that letters from physicians, presented to employers for the purposes of filing employee benefits claims, "clearly [do] not qualify as . . . business record[s] within the meaning of the . . . Pennsylvania Uniform Business Records as Evidence Act." Cromling, 327 F.2d at 146.

We agree with the lower court that the letter was inadmissible in that it was not a business record.

Appellant adds a second aspect to this argument, i. e. the lower court erred in denying pretrial discovery of the victims' personnel and medical records contained in prison files.

We must agree with the Commonwealth and the lower court that the issue may not be considered on appeal. Although appellant raised it in post-trial motions, he failed to brief and/or orally argue the issue before the lower court.

Our appellant courts have "insist[ed] that issues are to be properly preserved for appellate review both to assure a correct disposition of the merits and to conserve judicial resources." Benson v. Penn Central Transportation Co., 463 Pa. 37, 42, 342 A.2d 393, 395 (1975). Appellate review must be preceded by an opportunity for the lower court to correct any trial errors. Just as an issue not briefed for this court can be deemed to be abandoned, Commonwealth v. Peacock, 246 Pa. Super. 212, 369 A.2d 886 (1977), we feel that an issue not briefed for a lower court, but raised on appeal as an afterthought, can also be abandoned. We have recently held that failure to comply with local rules

[ 262 Pa. Super. Page 453]

    concerning briefing of post-trial motions will result in waiver of the right to appeal. Schneider v. Albert Einstein Medical Center, 257 Pa. Super. 348, 359, 390 A.2d 1271, 1277 (1978). Although we have not been referred to such a local rule in Montgomery County, we note the language of a trial court decision in that county: "This court refuses to consider issues not briefed or argued by the moving party, even though those issues were specifically identified in post-verdict motions," citing Commonwealth v. ...


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