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COMMONWEALTH PENNSYLVANIA v. HERBERT FITZHUGH A/K/A GEORGE BUTLER (01/06/87)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 6, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
HERBERT FITZHUGH A/K/A GEORGE BUTLER, APPELLEE

Appeals from the May 30, 1985 Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Bill of Information No. 543, April Term, 1984, and Order of the Court of Common Pleas Granting Defendant's Post-Verdict Motion for Arrest of Judgment on Bill of Information No. 544, April Term, 1984.

COUNSEL

Karen L. Grigsby, Assistant District Attorney, Philadelphia, for Com., appellant.

Michael J. Kelly, Assistant Public Defender, Philadelphia, for appellee.

Cirillo, President Judge, and Wickersham and Kelly, JJ.

Author: Kelly

[ 360 Pa. Super. Page 220]

This case involves appeals by the Commonwealth from orders of the trial court granting the appellee, Herbert Fitzhugh, an arrest of judgment upon his conviction after a jury trial of a firearms offense 18 Pa.C.S.A. § 6108, and denying a motion to modify the sentence in accordance with the applicable provisions of the Mandatory Minimum Sentencing Act 42 Pa.C.S.A. § 9712. The trial court found that the evidence was insufficient to establish that the appellee possessed an "operable" firearm within the meaning of the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101 et seq. or the Mandatory Minimum Sentencing Act 42 Pa.C.S.A. § 9712.

[ 360 Pa. Super. Page 221]

The appellee contends that the order vacating judgment was the functional equivalent of a verdict of aquittal and that the Commonwealth's appeals are barred by the double jeopardy provisions of the Pennsylvania and United States Constitution because reversal would lead to further fact-findings proceedings. The appellee also argues that the trial court correctly determined that the evidence was insufficient to sustain the verdict or to require application of the mandatory minimum sentence provisions of 42 Pa.C.S.A. § 9712.

The Commonwealth contends that the appeals are properly before this Court, and that the trial court abused its discretion in granting an arrest of judgment and in failing to impose the mandatory minimum sentence. The Commonwealth argues that no double jeopardy rights are implicated by the appeals because the appropriate remedy, should the Commonwealth prevail, is reversal of the orders, reinstatement of the verdict, and a directive to the trial court to resentence the appellee in accordance with the provisions of 42 Pa.C.S.A. § 9712. The Commonwealth notes that these remedies do not involve additional proceedings which involve determinations of fact as to the appellee's guilt or any of the elements of the crimes of which he was convicted. Finally, the Commonwealth argues that the evidence was sufficient to sustain the verdict and application of the mandatory minimum sentence provision.

Upon review of the record, the briefs of the parties, the opinion of the trial court, and relevant legal authority, we find that the trial court properly granted an arrest of judgment upon the appellee's firearm offense conviction. However, we find that the trial court abused its discretion in failing to apply the mandatory minimum sentence. The order granting an arrest of judgment on the firearms offense conviction is affirmed. Judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion.

The salient facts may be summarized as follows. On the evening of November 18, 1983, the victim, Oliver Green,

[ 360 Pa. Super. Page 222]

    was walking home from work. Near the end of a footpath crossing the vacant lot between the intersections of Eleventh Street and Girard Avenue and Twelfth Street and Girard Avenue in Philadelphia, Mr. Green was accosted by the appellee, who knocked off Mr. Green's non-prescription glasses and placed a gun against Mr. Green's neck. The appellee demanded money. When Mr. Green replied that he had none, the appellee moved to a position two to three feet in front of Mr. Green with the gun pointed at Mr. Green's chest. The light from a street lamp was shining directly on the appellee's face.

The appellee then searched Mr. Green's pockets for valuables and took from Mr. Green the pair of non-prescription glasses, a multi-function watch, and two gold chains. At one point during the armed robbery, Mr. Green, a twenty-year old golden gloves boxer, made a gesture toward the appellee as if preparing to throw a punch. The appellee taunted the victim by inviting him to try to hit him, and by informing his victim that it would be "an easy thing" to shoot Mr. Green and that he had "busted people before." Mr. Green then decided not to offer further resistance.

Sometime during this process, the stem on Mr. Green's glasses broke. The appellee returned the apparently valueless glasses. Mr. Green walked away, but the appellee called him back and, inexplicably, returned his watch. The appellee, still in possession of the gold chains, ran west on Girard Avenue and made his escape. Mr. Green promptly reported the crime, but the appellee was not apprehended.

Four months later, on March 20, 1984, the appellee walked past Mr. Green at a basketball court near the scene of the crime. Mr. Green recognized the appellee, followed him, eventually called the police, and identified the appellee when he was apprehended by police a short time later. The appellee was arrested and charged with two counts of Possessing an Instrument of Crime, Simple Assault, Terroristic Threats, two counts of Theft, Robbery, and Carrying a

[ 360 Pa. Super. Page 223]

Firearm on a Public Street or Property.*fn1 On April 5, 1984, the Commonwealth filed notice of its intention to proceed at sentencing under the Mandatory Minimum Sentencing Act. The appellee was tried by a jury on January 8 and 9, 1985 and was found guilty of Possession of an Instrument of Crime, Theft by Unlawful Taking, Robbery, and Carrying a Firearm on a Public Street or Property. The Commonwealth did not proceed on counts of Simple Assault and Terroristic Threats.

On January 18, 1985, the appellee filed a post-trial motion requesting post-verdict relief stating:

1. The evidence, as presented, was insufficient to prove the petitioner guilty beyond a reasonable doubt. More specifically, the evidence failed to establish that the petitioner was the individual that robbed the complainant.

(Post-Verdict Motions at 1). Although counsel requested the right to file additional reasons in support of the post-verdict motion after review of the notes of testimony, no additional motions were filed. On May 30, 1985, post-trial motions were argued. Appellee's motion for arrest of judgment was denied. However, the court, sua sponte, entered an arrest of judgment upon the firearms violation over the Commonwealth's objections on both procedural and substantive grounds.

The same day, the trial court sentenced the appellee to an aggregate term of imprisonment of one and one half (1 1/2) years to three (3) years for robbery and possession of an instrument of crime.*fn2 The trial court refused to impose a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712. On June 4, 1985, the Commonwealth filed motions to vacate the arrest of judgment and to modify the sentence. These motions were denied without a hearing on June 4, 1985. Timely notices of appeal were filed. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on

[ 360 Pa. Super. Page 224]

February 20, 1986. The appeals were consolidated, and are now properly before this Court for disposition.

I.

Before proceeding to the merits of the appeals, we must dispose of the appellee's contention that the instant appeals are barred by the double jeopardy clauses in the Pennsylvania and United States Constitutions. The appellee argues that despite the label of "arrest of judgment" the court's sua sponte order was in reality a verdict of acquittal, made final by principles of double jeopardy. Alternatively, the appellee argues that the appeals violate double jeopardy protections because a decision in the Commonwealth's favor would necessitate further fact-finding proceedings. Appellee cites Smalis v. Pennsylvania, 476 U.S. , 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), in support of his contentions. However, upon review of the relevant legal authority, we cannot agree. Clear precedent establishes that neither appeal is barred.

In Smalis, the United States Supreme Court held "that the trial judge's granting of petitioners' demurrer at the close of the prosecution's case was an acquittal under the double jeopardy clause, and that the Commonwealth's appeal was barred because reversal would have led to further trial proceedings." 476 U.S. at , 106 S.Ct. at 1749, 90 L.Ed.2d at 122. The Court stated that "whether the trial is to a jury or to the bench, subjecting the defendant to post-acquittal fact-finding proceedings going to guilt or innocence violates the Double Jeopardy Clause." Id., citing Arizona v. Rumsey, 467 U.S. 203, 211-212, 104 S.Ct. 2305, 2310-2311, 81 L.Ed.2d 164 (1984). (Emphasis added).

In Rumsey, the Supreme Court held that because the death penalty phase of a capital murder trial involved fact-finding proceedings equivalent to a separate trial on the issue of whether the death penalty was to be imposed, a second sentencing proceeding following a successful appeal by the state from a decision to impose a life sentence was barred. The previous life sentence imposed by the sentencing

[ 360 Pa. Super. Page 225]

    court as fact-finder was essentially an acquittal of the death penalty specifications. Significantly, the Supreme Court distinguished its previous decision in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). In Wilson, the Supreme Court held that the prosecution could appeal from a judgment of acquittal entered by the trial judge after the jury had returned a verdict of guilty. In Rumsey, the Supreme Court stated:

No double jeopardy problem was presented in Wilson because the appellate court, upon reviewing asserted legal errors of the trial judge, could simply order the jury's guilty verdict reinstated; no new factfinding would be necessary, and the defendant therefore would not be twice placed in jeopardy.

467 U.S. at 211, 104 S.Ct. at 2311, 81 L.Ed.2d at 172. Despite the difference in labels, this is precisely the situation presented in the instant appeal from the order granting an arrest of judgment.

The result in Wilson can be contrasted with the opposite result reached in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Burks, the United States Supreme Court held that when the original verdict was overturned because the evidence was not sufficient to sustain the verdict, a remand for determination of whether to grant a new trial or to enter a judgment of acquittal violated the double jeopardy clause. 437 U.S. at 17-18, 98 S.Ct. at 2150-2151. The Supreme Court noted that the United States had not cross-appealed on the question of whether the reviewing court was correct in holding that the evidence was not sufficient to sustain the verdict. This waiver of appeal distinguishes Burks from the instant case.

In Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984), the Supreme Court that:

In Burks, supra, we recognized that an unreversed determination by a reviewing court that the evidence was legally insufficient likewise served to terminate the initial jeopardy.

[ 360 Pa. Super. Page 226466]

U.S. at 308-309, 104 S.Ct. at 1813-1814. (Emphasis added). The Supreme Court explained that when acquittal is entered by the original finder of fact, the initial jeopardy terminates; but when a verdict of guilt is delivered, the original jeopardy continues throughout the appellate process. Id.

Following the reasoning in Wilson, supra, and Lydon, supra, we find that an arrest of judgment entered following a jury verdict of guilt does not become the functional equivalent of a verdict of acquittal until a final appellate decision upon the legal sufficiency of the evidence is made in the defendant's favor. A decision by an intermediate appellate court, including a trial judge entertaining post-verdict motions, does not terminate the initial jeopardy. Lydon, supra; Burks, supra. Thus, the Commonwealth may properly appeal the order granting an arrest of judgment. Wilson, supra.

Likewise, we find that the Commonwealth may properly pursue an appeal from the judgment of sentence. See Pa.R.Crim.P. 1410; 42 Pa.C.S.A. § 9712(d). No sentence is final until the right of appellate review has been exhausted or waived. Commonwealth v. Anderson, 304 Pa. Super. 476, 482, 450 A.2d 1011, 1014 (1982). Thus, double jeopardy principles do not prevent the Commonwealth from pursuing a correction, modification, or increase in the originally imposed sentence.*fn3 See Commonwealth v. Rainey, 338 Pa. Super. 560, 562-63, 488 A.2d 34, 35 (1985); see also United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980); Commonwealth v. Gonzales, 350 Pa. Super. 373, 504 A.2d 886 (1986).

Appellant's hopeful expectation that the United States Supreme Court would declare 42 Pa.C.S.A. § 9712 unconstitutional was not fulfilled. (Appellant's Brief at 23). The

[ 360 Pa. Super. Page 227]

Pennsylvania Supreme Court's decision, upholding the validity of the statute and remanding for resentencing four cases in which the sentencing court failed to apply the mandatory minimum sentence, was affirmed by the United States Supreme Court. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd sub. nom. McMillan v. Pennsylvania, 477 U.S. , 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

In McMillan, the Court held that Pennsylvania may properly treat visible possession of a firearm under 42 Pa.C.S.A. § 9712 as a sentencing factor rather than an element of an offense which must be proven beyond a reasonable doubt. 477 U.S. at , 106 S.Ct. at 2419, 91 L.Ed.2d at 79. Thus, a decision in the Commonwealth's favor herein would not result in a remand for resolution of factual issues going to the elements of the offense charged; and therefore, Smalis, supra, does not control.*fn4 Having found no double jeopardy violations, we now turn to the merits of the appeals.

II.

The Commonwealth first contends that the trial court erred in granting, sua sponte, an arrest of judgment on appellee's conviction of a firearms violation. The Commonwealth argues that the trial court abused its discretion in considering the issue sua sponte, and committed an error of law in granting the arrest of judgment.

A.

Appellee filed a specific written post-verdict motion challenging the sufficiency of the identification evidence. A hearing on the motion was conducted on May 30, 1985, immediately prior to sentencing. Appellee's motion was denied; however, the trial court went on to state, "I do,

[ 360 Pa. Super. Page 228]

    however, have some concerns whether or not the jury's verdict of guilty for violation of the Uniform Firearm's Act is supported by the evidence." (N.T. 5/30/85 at 3). Both appellee's counsel and the assistant district attorney indicated that they were under the impression that the firearms charge had been nol prossed. The trial judge then read to counsel the transcript of the verdict, which clearly indicated that the firearms charge had been submitted to the jury and that a guilty verdict was returned on that charge. (See N.T. 5/30/85 at 4-5, citing N.T. 1/9/85 at 74-75). The assistant district attorney, after reviewing his file, explained that the confusion was the result of the fact that two firearms charges were originally filed and that only one charge had been nol prossed. (N.T. 5/30/85 at 5).

An extended discussion of the sufficiency of the evidence to sustain the firearms conviction followed. (N.T. 5/30/85 at 5-11). Significantly, the assistant district attorney had argued the same issue before the same trial judge in a prior case and was able to present full argument to the court, including citation of relevant case law in support of his argument that the evidence was sufficient to sustain the firearms conviction and that operability of the firearm could be inferred. (N.T. 5/30/85 at 6, 10). At the close of the discussion, appellee's motion for arrest of judgment on the firearm's charge was formally stated on the record. (N.T. 5/30/85 at 11). The assistant district attorney then noted that in addition to its substantive objections to this motion, the Commonwealth also objected on the grounds that this specific complaint was not included in the defendant's written post-verdict motions. (N.T. 5/30/85 at 11). The motion for arrest of judgment on the firearms conviction was granted, based upon the trial court's finding that neither barrel length nor operability had been established. Trial Court Opinion at 4-6.

Ordinarily, "a post-verdict court's erroneous consideration of orally presented allegations of error will not suffice to preserve the allegation for appellate review." Commonwealth v. Philpot, 491 Pa. 598, 600, 421 A.2d 1046, 1047

[ 360 Pa. Super. Page 229]

(1980) (citing cases). Notwithstanding this general rule, we find that appellee's oral post-verdict motion was properly considered by the trial court and is properly before this Court on appeal.

Until the time of the hearing on appellee's properly filed post-verdict motion, counsel for appellee erroneously believed the firearms charge had been nol prossed. Upon discovering that his client stood convicted on the firearms charge, counsel for appellee immediately attempted to pursue and preserve the issue of the sufficiency of the evidence to sustain the firearms charge. Consequently, we find that the failure to comply with Pa.R.Crim.P. 1123(a) was the result of ineffective assistance of counsel;*fn5 and we find, based upon the unambiguous record, that the trial court properly considered the issue which ineffective counsel failed to properly preserve. See Commonwealth v. Upshur, 488 Pa. 27, 31, 410 A.2d 810, 812 (1980).*fn6

B.

The trial court found that the evidence was insufficient to sustain the firearms offense conviction because no evidence was presented regarding the barrel length, or operability of the firearm. Under 18 Pa.C.S.A. § 6102, "firearm" is defined as:

[ 360 Pa. Super. Page 230]

Any pistol or revolver with a barrel less than 12 inches, any shotgun with a barrel less than 24 inches, or any rifle with a barrel less than 15 inches.

Barrel length is an essential element of the offenses defined in the Pennsylvania Uniform Firearms Act. See Commonwealth v. Todd, 477 Pa. 529, 533, 384 A.2d 1215, 1217 (1978).

Upon careful review of the transcripts we can find no evidence, testimonial or otherwise, which would tend to establish the length of the barrel of the handgun used by the appellant. Lamentably, the prosecution's inadvertant oversight in this regard compels this Court to affirm the order granting an arrest of judgment of the firearms offense conviction. See Commonwealth v. West, 334 Pa. Super. 287, 482 A.2d 1339 (1984); Commonwealth v. Rapp, 253 Pa. Super. 31, 384 A.2d 961 (1978).

III.

The Commonwealth's second contention is that even if the arrest of judgment was properly granted with respect to the firearms conviction, the trial court erred in failing to sentence the appellant to the mandatory minimum sentence required by 42 Pa.C.S.A. § 9712. We agree, and accordingly vacate the sentence and remand for resentencing in accordance with the Act.

Initially, we note that the trial court is without authority to impose upon the offender a sentence below the mandatory minimum when the Commonwealth establishes by a preponderance of the evidence that the offender visibly possessed a firearm during the commission of an enumerated offense. 42 Pa.C.S.A. § 9712(c).

The trial court provided four reasons for refusing to apply the mandatory minimum sentence: 1) no post trial evidence was presented and the Commonwealth failed to preserve the trial evidence by requesting that it be incorporated into the sentencing hearing record; 2) requiring the defendant to present evidence on the issue of operability or barrel length would violate the privilege against self-incrimination; 3) the Commonwealth failed to establish barrel

[ 360 Pa. Super. Page 231]

    length; and 4) the Commonwealth failed to establish operability. We shall consider each of these alleged defects seriatim.

First, the Commonwealth is not required to preserve trial testimony nor move its incorporation into the record of the sentencing hearing. The plain wording of the Mandatory Minimum Sentencing Act provides:

The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence . . . .

42 Pa.C.S.A. § 9712(b). Once the Commonwealth has given reasonable notice of its intent to proceed under the statute, it is the mandatory responsibility of the court to review the relevant trial evidence and to permit the presentation of additional evidence. The Commonwealth may in its discretion choose to rest upon the evidence presented at trial. In the instant case, proper notice of intent to proceed under the statute was given. Therefore, it was an abuse of discretion and reversible error for the court not to consider the evidence presented at trial.

Next we must consider the trial court's statement that:

To require the Defendant to introduce evidence relating to the issues inherent in the applicability of the Mandatory Minimum Sentencing Act (such as the barrel length of the gun or its operability) at trial, would be contrary to his Fifth Amendment privilege against self-incrimination and his right not to take the stand at all in addition to the constitutional requirement that the Commonwealth prove beyond a reasonable doubt all of the elements of an offense.

Trial Court Opinion at 7. We cannot agree.

With regard to the alleged Fifth Amendment violation, it is sufficient to note that the defendant may elect to address the issue of whether the mandatory sentence applies after his conviction at the sentencing hearing. See 42 Pa.C.S.A.

[ 360 Pa. Super. Page 232]

§ 9712(b), supra. Consequently, his right to remain silent at trial is not jeopardized. Thus, the Mandatory Minimum Sentencing Act procedures do not violate the appellee's rights, they augment them.*fn7

Next, we must address the trial court's statement that barrel length is an issue which is "inherent to the applicability" of the Mandatory Sentencing Act. The trial court is in error. Barrel length is not an issue to be considered in determining whether the offender visibly possessed a firearm in the context of 42 Pa.C.S.A. § 9712. Unlike the definition of "firearm" applicable to 18 Pa.C.S.A. § 6108, the definition of "firearm" contained in 42 Pa.C.S.A. § 9712 does not contain specific barrel lengths as a requirement to constitute a covered firearm. Compare 18 Pa.C.S.A. § 6102 and 42 Pa.C.S.A. § 9712(c). Hence, Todd, supra, West, supra and Rapp, supra, do not apply and barrel length is irrelevant.

Finally, we address the trial court's statement that operability is an issue "inherent to the applicability" of the Mandatory Minimum Sentencing Act, and the trial court's conclusion that operability was not established by a preponderance of the evidence. The trial court reasoned that because the handgun was not fired during the course of the robbery and because it was not produced at trial, the mandatory minimum sentence may not be applied because

[ 360 Pa. Super. Page 233]

    the Commonwealth has not established that the gun was operable. Again the trial court is in error.

In Commonwealth v. Horshaw, 237 Pa. Super. 76, 346 A.2d 340 (1975), this Court stated:

237 Pa. Superior Ct. at 80, 346 A.2d at 342. In Commonwealth v. Lee, 224 Pa. Super. 17, 302 A.2d 474 (1973), an en banc panel of this Court held that any evidence establishing that the defendant used an object which proports itself to be a firearm is sufficient to establish the use of a firearm "unless and until evidence is presented by either side establishing the inoperability of the gun involved." 224 Pa. Superior Ct. at 19, 302 A.2d at 475.

Although Horshaw and Lee involved firearms offenses, we see no reason to adopt a different rule for cases involving application of the mandatory minimum sentence required by 42 Pa.C.S.A. § 9712. In the instant case, no evidence tending to establish inoperability was presented at trial or during the sentence hearing. Consequently, the Commonwealth was under no obligation to establish operability. Horshaw, supra; Lee, supra.

Moreover, this Court has consistently held that:

Commonwealth v. Berta, 356 Pa. Super. 403, 409, 514 A.2d 921, 924 (1986); Commonwealth v. Jennings, 285 Pa. Super. 295, 304, 427 A.2d 231, 235 (1981), citing Commonwealth v. Layton, 452 Pa. 495, 498, 307 A.2d 843, 844 (1973).

In the instant case, the victim testified that a gun was placed against his neck and he could feel that it was made of steel or some other metal. The victim testified unequivocally that the appellee stood two and one-half to three feet in front of him with a gun pointed at his chest. Although

[ 360 Pa. Super. Page 234]

    the victim did not stare at the gun, he expressed no doubt as to whether it was in fact a gun. Additionally, the victim testified that the appellee threatened to shoot him with the gun. Cross-examination did not expose contradiction or doubt and the appellee presented no evidence in rebuttal. Hence, operability was not at issue.

Furthermore, upon review of the record available to the trial court at sentencing, we find that more than sufficient evidence was present to meet the burden of establishing visible possession of a firearm by a preponderance of the evidence. Indeed, the jury returned a verdict of guilty on the Possessing an Instrument of Crime charge after being instructed that in order to convict they must determine, among other things, that the appellee possessed "a handgun" beyond a reasonable doubt. Consequently, we find that the trial court abused its discretion and committed errors of law in failing to impose the mandatory sentence.

Based on the foregoing reasons, the order granting an arrest of judgment upon the firearms offense conviction is Affirmed; however, judgment of sentence is Vacated and the case is Remanded for Resentencing in accordance with the provisions of the Mandatory Minimum Sentencing Act.


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