No. 2241 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, No. 2688, July Term, 1974.
Ronald F. O'Driscoll, Assistant Public Defender, Norristown, for appellant.
John J. Burfete, Jr., Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ. Cercone, President Judge, and Hoffman, J., concur in the result.
[ 272 Pa. Super. Page 508]
This is an appeal from the Court of Common Pleas of Montgomery County, Criminal Division, by the defendant-appellant, Willie Stafford, from a conviction on charges of theft of movable property under 18 P.C.S.A. 3921(a).
On July 22, 1974, police officers were called to the scene of a furniture store. They had been informed that broken glass had been observed at the store. Upon arriving on the scene the police observed broken glass on the right side of a large door, saw someone moving about inside the store and then observed the defendant carrying a portable television and a chrome stand out of the store. Defendant was arrested but failed to appear for trial and a bench warrant was issued for his arrest. On October 7, 1977, he was apprehended and was tried by a jury and convicted on February 9, 1978. On March 18, 1975, the Commonwealth had requested an extension of time in which to bring the defendant to trial. The court below ordered that he be tried within 120 days of his apprehension.
[ 272 Pa. Super. Page 509]
The defendant claims that since he was apprehended on October 7, 1977, the 120-day period which was the extension granted the Commonwealth pursuant to its petition for extension, was violated since it expired on February 4, 1978 and he was not brought to trial until February 8, 1978 when the court had ordered a conference between the Commonwealth and the defendant's attorneys to discuss the disposition of various pre-trial motions which defendant had made. However, February 4, 1978 was a Saturday and on February 6, 1978 and February 7, 1978, the Montgomery County Courthouse was closed due to a devastating snowstorm. Thus, the case went to trial on the first day the Courthouse was opened after the 120th day. Therefore, we find no violations of Pa.Rule of Criminal Procedure No. 1100 in this case and hold that the defendant is not entitled to have the charges against him dismissed on that basis. Moreover, defendant failed to file a petition to dismiss the charges against him for a violation of Rule 1100 and therefore waived such argument. Commonwealth v. Yancey, 251 Pa. Super. 478, 380 A.2d 880 (1977).
Defendant also claims that his rights were violated because the District Attorney had refused to enter into plea bargaining with him and insisted that the defendant receive the maximum sentence. The defendant was convicted of murder in 1968 and sentenced to execution. On appeal, his conviction was reversed and a new trial granted to him. Upon retrial he was acquitted. Defendant claims that his 14th Amendment equal protection rights were violated because the District Attorney refused to plea bargain with him and claims that the unsuccessful past prosecution of defendant was the reason the District Attorney refused to plea bargain with him. Defendant claims that the court below should have conducted an evidentiary hearing to determine whether the failure to convict the defendant in his retrial on the murder charge was the reason the District Attorney refused to plea bargain with him. This argument is patently devoid of merit. The Commonwealth is never under any legal obligation to plea bargain with any defendant. Stated another way a defendant has no constitutional right to a
[ 272 Pa. Super. Page 510]
plea bargain arrangement. Defendant's attempt to fashion a 14th Amendment issue out of the fact that the Commonwealth refused to plea bargain with him is an attempt to create such a right. The decision as to whether to enter into plea negotiations is a function of prosecutorial discretion and we will not review such decisions unless such decisions are based upon an invidious classification such as race, religion, or national origin. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). No such claim is made here. The fact that defendant was faced with with the choice of going to trial when the Commonwealth had a strong case against him or pleading guilty in open court without the benefit of a plea bargain does not entitle him to any relief based upon the equal protection clause of the 14th Amendment. See Bordenkirchner v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
Defendant also alleges that the court below erred when it permitted the owner of the stolen goods to testify that their value was "approximately $300.00". A proprietor's statement of the value of stolen goods is sufficient to establish the value of those goods in criminal cases and the weight to be accorded to such testimony is for the fact-finder. Commonwealth v. Warlow, 237 Pa. Super. 120, 346 A.2d 826 (1975). Defendant further contends that the trial judge should have instructed the jury to determine the value of the stolen goods for purposes of establishing the degree of the theft offense. However, the defendant never requested such a charge of the trial court and in fact asked that the jury be precluded from setting the value of the goods because he claimed that the value thereof had not been sufficiently established. The defendant cannot assert such a position at trial and claim error on appeal on the grounds that the trial court failed ...