Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal at No. 8312-1743 & 1745
Dennis H. Eisman, Philadelphia, for appellant.
Harriet R. Brumberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, President Judge, and Hoffman and Hester, JJ. Spaeth, President Judge, files a concurring statement.
[ 349 Pa. Super. Page 291]
This is an appeal from the judgment of sentence for robbery and criminal conspiracy. Appellant contends that (1) he is entitled to a new trial because the prosecutor injected her opinion into her closing argument to the jury, and (2) the Mandatory Minimum Sentencing Act, 42 Pa.C.S.A. § 9713, is unconstitutional for the following reasons: (a) § 9713(c), which dictates the burden of proof to be employed at sentencing, violates Article V, § 10(c) of the Pennsylvania Constitution, which gives the judiciary exclusive control over matters of practice and procedure in the courts; (b) the Act denies him due process because it does not require the Commonwealth to provide notice of its intention to invoke the Act prior to trial, but only after conviction; (c) the Act denies him due process because the prosecution need only prove by a preponderance of the evidence that the offense occurred in or near public transportation; and (d) the Act gives the prosecutor unbridled discretion to decide whether to invoke the Act. For the following reasons, we affirm the judgment of the court below.
On December 5, 1983, appellant was arrested and charged with criminal conspiracy and robbery in connection with the robbery of a taxicab driver. The Commonwealth filed a notice of intention to proceed under 42 Pa.C.S.A. §§ 9712 and 9713, two mandatory minimum sentencing provisions, sixteen days after appellant's arrest. Following a jury trial, appellant was found guilty of both charges and was
[ 349 Pa. Super. Page 292]
sentenced to a term of five-to-ten years imprisonment for robbery in accordance with 42 Pa.C.S.A. § 9713,*fn1 and a concurrent term of two-to-five years imprisonment for criminal conspiracy. This appeal followed.
Appellant first contends that the following remark made by the prosecutor during her closing argument to the jury was prejudicial:
I am asking you not to let all the work and the performance of the duties of all of the people in this case go for naught. I ask you to do your duty and to return a just verdict in this case; and I believe that from all of the evidence that has been presented in this case, that the only just verdict is guilty on both Bills, Conspiracy and Robbery.
(N.T. May 4, 1984 at 352). Specifically, appellant argues that he was deprived of a fair trial because the prosecutor expressed her personal belief as to appellant's guilt. We disagree. A prosecutor must have "reasonable latitude" in arguing a case to the jury, and his or her remarks may contain deductions and inferences from the testimony presented. Commonwealth v. Brown, 332 Pa. Superior 35, 44, 480 A.2d 1171, 1176 (1984). "[The prosecutor] may always argue to the jury that the evidence establishes the defendant's guilt." Id. See also ...