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COMMONWEALTH PENNSYLVANIA v. DEREK GREEN (03/23/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
DEREK GREEN, APPELLANT

No. 1805 October Term, 1977, Appeal from Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 1275-1277 January Term, 1974.

COUNSEL

Donald M. Moser, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

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

Author: Van Der Voort

[ 264 Pa. Super. Page 474]

Appeal is taken from judgments of sentence rendered following jury trial and verdicts of guilty of robbery, criminal conspiracy, and possession of instrument of crime.*fn1 Post trial motions were made and denied.

Stated briefly, the facts are that on January 4, 1974, shortly after 9:00 P.M., appellant and a cohort entered a bar in Philadelphia. As the latter, brandishing a shotgun, moved toward the bartender to inform him of the "stickup", appellant held customers near the street door at bay with an automatic pistol. When one of the customers moved in the direction of that door, Green stated "Don't move or I'll kill you", and in fact pulled the trigger several times, fortunately to no avail. Patrons then noticed the intruders' plan going awry, and several rushed appellant and the other man. Appellant was pushed out the door; and the shotgun was wrenched away from his cohort, who was escorted to and through the door. Fortuitously, the patrons ran to secure the rear door from inside, and did so just as one leg and the automatic pistol protruded through the opened door, which was immediately closed.

During voir dire, after several panels of prospective jurors had been interrogated, appellant's counsel objected to the Commonwealth's use of its peremptory challenges. It was alleged that 17 of these challenges had been used to strike black jurors, allegedly to the prejudice of appellant, himself black. The lower court overruled the objection, pointing out that each side's use of its peremptory challenges was its prerogative.*fn2 Further, lengthy discussion ensued as to the questionable merits of counsel's argument about discrimination against his client in the light of the

[ 264 Pa. Super. Page 475]

    fact that the prosecution would soon exhaust its full complement of challenges and then be obliged to accept the jurors in the order in which they were called (unless challenged for cause). The court concluded that counsel's argument would fail at that point. Appellant now reiterates his argument that the Commonwealth used its peremptory challenges to exclude blacks from the jury, in contravention of appellant's due process rights, and alleges as error below the refusal to strike the panel as selected. We are not willing to interfere with either side's use of its peremptory challenges, absent a showing of a pattern of discrimination. A bald assertion of such, as here made by appellant, does not establish the type of prejudicial discrimination discussed in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). There is nothing in the facts of this case to show an illegal systematic exclusion of blacks from appellant's jury. Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975) and Commonwealth v. Jones, 246 Pa. Super. 521, 371 A.2d 957 (1977).

Next appellant argues that conviction of violation of ยง 907(a) of the "Crimes Code", stating that "A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally", does not comprehend definitionally the possession of a hand gun. This position has been held to have no merit. Commonwealth v. McNear, 238 Pa. Super. 177, 353 A.2d 39 (1977), affirmed per curiam 478 Pa. 19, 385 A.2d 975 (1978).

Lastly, appellant argues that even though he waived the provisions of Pa.R.Crim.P. Rule 1100(a)(1), so that a pending case charging him with murder could be disposed of, his rights were nonetheless contravened by no date being set to end the running of the extended date for commencement of trial. The questioned period is not the type of Rule 1100(d)(2) continuance requested by the defendant and discussed in Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), for which there must be a stated end. Said rule is to be applied prospectively from the date of the Coleman decision and the defendant's requested continuance instantly was pre- Coleman. Furthermore, appellant never

[ 264 Pa. Super. Page 476]

    filed a Rule 1100(f) application to dismiss. The argument is therefore waived. Commonwealth v. Wallace, 475 Pa. 27, 379 A.2d 558 (1977) and Commonwealth v. Matt, 248 Pa. Super. 538, 375 A.2d 371 (1977).

Judgments of sentence affirmed.


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