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COMMONWEALTH PENNSYLVANIA v. JOHN BAKER (01/17/86)

submitted: January 17, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN BAKER, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal, No. 7901-2684, 2685, 2721.

COUNSEL

Cynthia C. Martelli, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Johnson and Lipez, JJ.

Author: Lipez

[ 352 Pa. Super. Page 262]

In a non-jury trial, defendant was convicted of burglary, conspiracy, and criminal trespass. The trial court denied defendant's post-verdict motions and imposed a sentence of two to ten years imprisonment for burglary (defendant received a suspended sentence on the conspiracy charge). Defendant failed either to petition the court to reconsider his sentence or to take a direct appeal. He subsequently filed a pro se petition under the Post Conviction Hearing Act (PCHA), which was later amended by new counsel and denied by the PCHA court after a hearing. In this appeal defendant claims that (1) his trial counsel was ineffective

[ 352 Pa. Super. Page 263]

    for failing to file an appeal raising the issues of (a) the adequacy of the trial court's statement of reasons at sentencing and (b) the sufficiency of the evidence; and (2) the PCHA court erred in reversing its initial order granting judicially fashioned use immunity to Manfred Turner, a potential defense witness. We affirm.

In Commonwealth v. Sweitzer, 261 Pa. Super. 183, 191, 395 A.2d 1376, 1380-81 (1978), this court explained that

At the PCHA hearing, defendant asserted that he asked trial counsel (orally and by letter) to file an appeal on his behalf, and counsel agreed to do so. Defendant's trial counsel testified that while she had no specific recollection of the case (which was tried five years earlier), it was her normal practice to ask the client whether he wanted her to file an appeal and, if he did, to write a memorandum and refer the case to the appellate division of her office. Counsel further testified that her review of defendant's file revealed neither a memorandum nor a letter from defendant asking her to file an appeal.

The PCHA court found defendant's assertions to be "totally unworthy of belief." Based on this finding and trial counsel's testimony, the court concluded that defendant knowingly, intelligently and voluntarily waived his appellate rights. "In reviewing the PCHA court's determination, our task is not to engage in de novo evaluation of testimony." Commonwealth v. Lutz, 492 Pa. 500, 506, 424 A.2d 1302, 1305 (1981). Accordingly, we will not disturb the PCHA court's determination that defendant voluntarily waived his right to appeal.

[ 352 Pa. Super. Page 264]

Even if we were to find that counsel was ineffective for failing to file an appeal, the issues which defendant claims should have been raised are meritless. Defendant alleges that the trial court's statement of reasons for sentence was inadequate. We disagree. After the prosecutor read from the pre-sentence report that defendant's prior criminal record included sixteen arrests, thirteen convictions, and twelve parole violations, the court stated that it considered defendant's "long, long history" of criminal activity, and noted that defendant has "been given time after time opportunity and there has to be an end." The record also discloses that the court considered the nature of the present offense (burglary), stating that it was not a particularly violent crime, though the court noted that there was "some violence" in defendant's background. The court further stated that it considered the probation officer's statement with regard to defendant's "cooperative" behavior. This statement of reasons clearly demonstrates that the court considered factors specified in the sentencing code. "[T]he statement of the court at the sentencing proceedings need not specifically cite or include the language of the sentencing code, it must only demonstrate that the court has considered the factors ...


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