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COMMONWEALTH PENNSYLVANIA v. ROBERT FREEMAN (06/30/86)

submitted: June 30, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT FREEMAN, APPELLANT



Appeal from the Judgment of Sentence of October 30, 1985, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 85-01-1216.

COUNSEL

Marc A. Arrigo, Philadelphia, for appellant.

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

Olszewski, Cercone and Hester, JJ.

Author: Hester

[ 356 Pa. Super. Page 334]

On December 6, 1984, Gary D. Gully arrived at 1034 South 52nd Street, Philadelphia, the residence of his mother-in-law. The residence was a rooming house where several roomers shared a common kitchen and bathroom. Gully had been a resident of the house, and he was returning to pick up several metal cans which he had stored there earlier. Gully recycled cans as part-time employment.

Gully could not find the cans, and his mother-in-law could not recall seeing them. He then walked to the kitchen where appellant, Robert Freeman, and a woman were speaking. When Gully asked them if they had seen the cans, appellant became belligerent and threatened to shoot him. Appellant apparently thought that Gully was accusing him of stealing the cans.

Shortly thereafter, appellant left the kitchen and walked to his room. As Gully walked passed appellant's room to the front door, appellant attacked him with a pipe. Gully defended himself with a martial arts kick and evaded some blows, but appellant nevertheless succeeded in striking his face with the pipe. The men then proceeded to wrestle, and Gully disarmed appellant. Shortly thereafter, the police

[ 356 Pa. Super. Page 335]

    arrived, Gully was taken to the hospital where he was treated for a broken jaw and appellant was arrested.

Appellant was charged with aggravated assault, simple assault and recklessly endangering another person. Following a jury trial, appellant was convicted of aggravated assault and simple assault. Post-verdict motions were denied, and appellant was sentenced under the Mandatory Sentencing Act to imprisonment of five to ten years. This appeal was thereafter filed from the judgment of sentence of October 30, 1985.

Appellant raises the following arguments: 1) his due process rights were violated by application of the Mandatory Sentencing Act, 42 Pa.C.S. § 9714; 2) the Mandatory Sentencing Act violates the due process clause; 3) the jury was prejudiced because the trial court denied appellant's challenges for cause to two jurors; 4) the trial court erred in admitting the victim's statement concerning his injury because it was the result of an illegal arrest; 5) the trial court erred in restricting cross examination of the victim on inconsistent statements; and 6) the trial court erred in denying appellant's submitted charges on the missing witness rule, self defense and prior inconsistent statements. We shall address each of these arguments. In doing so, we affirm.

First, appellant complains that his due process rights were violated by application of the Mandatory Sentencing Act because the Commonwealth failed to give proper notice to proceed under the Act. According to appellant, this alleged failure to give proper notice took three forms: 1) there was no notice in the information which in turn affected appellant's decision whether to plead guilty; 2) notice during pretrial was inadequate because it did not identify the prior convictions, their information numbers and dates, the sentence imposed and the trial judge; and 3) the purported notice was defective because it referred to five years maximum and ten years maximum sentence.

[ 356 Pa. Super. Page 336]

Section 9714(a) of the Sentencing Code provides that anyone convicted of aggravated assault by intentionally causing serious injury or by conduct in extreme indifference to human life shall be sentenced to a minimum sentence of at least five years if they had previously been convicted of a crime of violence. Section 9714(c) requires "reasonable notice of the Commonwealth's intention to proceed under" the mandatory sentencing provision. Said notice must be given "after conviction and before sentencing." Subsection (c) states specifically that notice is not required prior to conviction.

Here, the complaint contained a rubber stamp notice stating "mandatory sentence case." On January 18, 1985, four months prior to trial, the Commonwealth filed and served a written notice that it was prosecuting this matter as a mandatory sentencing case. This notice informed appellant that in the event of conviction he would serve a minimum of five years and maximum of ten years imprisonment.

At trial following conviction, the prosecutor stated:

We ask bail be revoked. We also notify the defendant at this time that he has a prior conviction for aggravated assault and we will be moving under the mandatory minimum guidelines. I think notice has been sent, but we ought to notify him that Commonwealth will be proceeding. Prior aggravated assault caused serious bodily injury.

N.T., May 6, 1985, at 137-38.

On three occasions, two prior to conviction and one following conviction but prior to sentencing, the Commonwealth notified appellant of its intent to apply mandatory sentencing provisions. There is no requirement that the Commonwealth provide notice prior to trial. Therefore, appellant's argument concerning the need for notice in the information is rejected. Commonwealth v. Reagan, 348 Pa. Super. 589, 502 A.2d 702 (1985).

Similarly, appellant's arguments concerning the sufficiency of notice must fail. The rules do not require notice of

[ 356 Pa. Super. Page 337]

    the information number, conviction date, sentence and trial judge on the prior proceeding. The Commonwealth referred to the prior conviction for aggravated assault. Surely, appellant would recall the former proceedings and disposition. If not, ...


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