No. 1269 Philadelphia, 1981, Appeal from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, Nos. 2029, 2035 and 2037 of 1980.
Manuel Grife, Philadelphia, for appellant.
Michael Turner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Rowley, Hoffman and Van der Voort, JJ. Hoffman, J., files a dissenting opinion.
[ 316 Pa. Super. Page 455]
This is a direct appeal from judgments of sentence imposed upon appellant following a jury verdict finding him guilty of two counts of robbery, one count of conspiracy and a charge of possession of a firearm by a former convict.*fn1 The charges were filed as the result of the gun-point robbery by appellant and two accomplices of between ten and twenty persons at a Philadelphia apartment house on January 11, 1980. Post-trial motions were timely filed. The motions were subsequently amended by new counsel appointed to represent appellant in the post-trial proceedings. On March 9, 1981, the post-trial motions were denied and appellant was sentenced to terms of three to ten years imprisonment on each robbery, and terms of one to five years imprisonment for the conspiracy and firearms possession charges. All sentences were made concurrent. Represented by a third attorney, appellant brought this appeal. We affirm.
The sole issue raised by appellant is set forth in his brief as follows:
The Court erred in permitting testimony concerning the appellant's previous conviction for burglary in 1974 to be admitted into evidence.
Section 6105 of the Crimes Code, 18 Pa.C.S.A. § 6105, provides:
No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control.
Section 6102 of the Code defines "crime of violence" as the commission or attempted commission of the crimes of "murder,
[ 316 Pa. Super. Page 456]
rape, aggravated assault, robbery, burglary, entering a building with intent to commit a crime therein, and kidnapping." At the trial in this case, the Commonwealth, in order to prove the firearm's charge, presented evidence that appellant had been convicted on a charge of burglary in 1974. Appellant presents two arguments in support of his claim that the evidence of his prior burglary conviction was erroneously admitted.
First, appellant argues that his prior conviction should not have been mentioned before the jury in any way whatsoever. We disagree. Evidence of a prior conviction of a crime of violence is both proper and necessary when a defendant is tried on charges stemming from an alleged violation of § 6105. This is true even when the § 6105 charge is tried jointly with charges of the commission of other crimes. Commonwealth v. Stanley, 265 Pa. Super. 194, 401 A.2d 1166 (1979), affirmed, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Lowry, 260 Pa. Super. 454, 394 A.2d 1015 (1978). Indeed, in his opinion for this Court in Stanley, Judge Price specifically stated that "the crime charged in the instant case required the introduction into evidence of the exact nature of the prior crime." 265 Pa. Super. at 208, 401 A.2d at 1173. Furthermore, unless a severance of the charges is granted, Commonwealth v. Carroll, 275 Pa. Super. 241, 418 A.2d 702 (1980), the Commonwealth must prosecute all offenses arising from the same criminal episode at the same time. Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974); 18 Pa.C.S.A. § 110(1)(ii). In this case, there was no motion for a severance of the charges and appellant alleges no grounds upon which the trial court should have intruded and granted a severance sua sponte. Therefore, there was no error in
[ 316 Pa. Super. Page 457]
presenting the evidence that appellant had previously been convicted of burglary.*fn2
Appellant also argues, however, that even if the fact of appellant's conviction was properly introduced, "greater care should have been taken to ameliorate its possible influence on the jury towards the appellant by a limitation of the amount of detail that came into evidence." Brief for Appellant at 12. Appellant argues that the details concerning the prior offense admitted into evidence at his trial show more than the simple fact of his earlier conviction, thereby causing the jury to be unfairly prejudiced against him. Again we are constrained to disagree.
Only two witnesses testified for the Commonwealth concerning appellant's earlier conviction. The first witness was a Deputy Court Clerk in the Court of Common Pleas, Jean McCollum, who testified from records produced pursuant to a subpoena duces tecum. She stated that a person named "Rickey Payne" was arrested on February 12, 1974, at 1310 Wallace Street, that "Payne" later pleaded guilty to the charge of burglary before the Honorable James R. Cavanaugh [now a member of this Court] who placed appellant on three ...