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COMMONWEALTH PENNSYLVANIA v. GARY LEE GONCE (09/30/83)

filed: September 30, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY LEE GONCE, APPELLANT



No. 3297 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at No. 3972-79.

COUNSEL

Brian S. Quinn, Havertown, submitted a brief on behalf of appellant.

David E. Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.

Cercone, President Judge, and McEwen and Hoffman, JJ.

Author: Hoffman

[ 320 Pa. Super. Page 24]

Appellant contends that the verdict was against the weight of the evidence, and that the lower court erred in (1) refusing to dismiss the charges against him pursuant to the Interstate Agreement on Detainers; (2) granting the Commonwealth's petition to extend under Pa.R.Crim.P. 1100 and the Detainer's Agreement; (3) permitting evidence of prior convictions; (4) refusing to recuse itself; and (5) making various trial rulings. Finding no merit in appellant's numerous contentions, we affirm the judgment of sentence.

On October 24, 1980, following an October, 1977 robbery in Delaware County, appellant was extradited from the state of Delaware to Pennsylvania after lengthy proceedings pursuant to the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101 et seq. Once in Pennsylvania, appellant was found guilty after a jury trial of robbery and conspiracy. Following the denial of post-trial motions, appellant was sentenced to consecutive terms of ten-to-twenty years imprisonment for robbery and five-to-ten years for conspiracy, both Pennsylvania sentences to run consecutive to appellant's Delaware sentence. A motion to reconsider sentence and post-verdict motions were denied, prompting this appeal.

[ 320 Pa. Super. Page 25]

I.

Appellant contends first that the jury's guilty verdict was contrary to the weight of the evidence. "The grant of a new trial on the ground that the verdict is against the weight of the evidence is generally committed to the sound discretion of the trial court. Where the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court's denial of a motion for a new trial will not be disturbed." Commonwealth v. Larew, 289 Pa. Superior Ct. 34, 37, 432 A.2d 1037, 1038 (1981) (citations omitted). Further, "it must appear from the record that the jury's verdict was so contrary to the evidence as to shock one's sense of justice and to make the award of a new trial imperative." Commonwealth v. Barnhart, 290 Pa. Superior Ct. 182, 185, 434 A.2d 191, 192 (1981). So viewed, the evidence is as follows: Robert Mattei, owner and manager of Sparn's seafood restaurant, testified that on October 31, 1977, at 2:00 a.m., he was robbed by two hooded, armed men, outside of his restaurant, struck with a gun and thrown into the trunk of his car. Appellant's co-conspirators, Bearl Bonecutter, Jr., and Steven Davidson, testifying for the Commonwealth pursuant to plea agreements, both stated that appellant was involved in planning and executing the crime and drove the car transporting them to and from the scene. (N.T. March 30, 1981 at 36.) Police Officer Narvell testified that in the early morning hours he had seen an orange and white Ford Pinto on Baltimore Pike driving toward and away from Sparn's restaurant four times. Although Narvell could not identify the passengers, he noted that their number changed several times. Appellant offered the testimony of three alibi witnesses who stated that appellant was at a party at one of their homes on the morning in question. Appellant also presented a letter allegedly signed by Bonecutter, his signature verified by an expert witness, stating that Bonecutter was lying about appellant's involvement in order to receive a favorable deal from the Commonwealth.

[ 320 Pa. Super. Page 26]

The Commonwealth's own handwriting expert testified that in his opinion, Bonecutter had not signed the letter.

Although the testimony of Bonecutter and Davidson stems from corrupt, polluted sources and must therefore be carefully scrutinized by the fact-finder, Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980), "guilt or innocence may be predicated on [the] uncorroborated testimony of an accomplice." Id.; see also Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975). In addition, the jury, in evaluating the witness' credibility may accept all, part or none of his testimony. Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981). Here, the jury accepted the Commonwealth's evidence of appellant's direct participation in and execution of the robbery. We cannot find the verdict so against the weight of the evidence as to shock one's sense of justice and, accordingly, find no merit in appellant's contention.*fn1

II.

Appellant next raises several challenges to the lower court's refusal to dismiss the charges against him pursuant to the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101 et seq.

A.

First, appellant argues that his application for habeas corpus relief should have been granted because Delaware officials failed to comply with Art. III(c) of the Agreement on Detainers. Although we agree that Delaware prison officials failed in their duty toward appellant, his requested relief, dismissal of charges in Pennsylvania, cannot be

[ 320 Pa. Super. Page 27]

    granted. When a foreign state has lodged a detainer against a prisoner

[t]he warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.

42 Pa.C.S.A. § 9101, Art. III(c). Here, the testimony at appellant's habeas corpus hearing leaves us in doubt as to whether appellant was fully informed of the Pennsylvania detainers lodged against him and his accompanying rights. On direct examination, appellant contended that he was shown the Pennsylvania detainers but they were never explained and he was never informed of his right to request a final disposition of charges. On cross-examination, however, he admitted that he was told on July 10, 1980, that there were outstanding charges, detainers lodged against him, and that he "knew they were trying to get me up here [Pennsylvania]." (N.T. January 9, 1981 at 7). Appellant also testified that he knew from approximately August of 1979 that Pennsylvania was attempting to extradite him from Delaware. The Commonwealth elicited testimony indicating that appellant viewed the detainers and refused to sign them on July 10, 1980. We are not convinced that appellant was informed of his right to request a final disposition, however, because the Commonwealth failed to present evidence of Delaware's full compliance with Art. III(c). Cuyler v. Adams, 449 U.S. 433, 440, 101 S.Ct. 703, 707, 66 L.Ed.2d 641 (1981), implies that the rights accorded prisoners under Art. III(c) must be provided by officials. In Cuyler, the Supreme Court held that prisoners involuntarily transferred by detainer pursuant to Art. IV were entitled to the same pre-transfer rights as those prisoners transferred under the Extradition Act. The Court noted that those prisoners who initiate their own transfer under Art. III, however, are not entitled to these same rights, i.e. a pre-trial hearing, because Art. III has its own safeguards that

[ 320 Pa. Super. Page 28]

"[require] the warden to notify the prisoner of all outstanding detainers and then to inform him of his right to request final disposition of the criminal charges underlying those detainers." Id. at 444, 101 S.Ct. at 709. Therefore, appellant was clearly entitled to not only be informed of ...


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