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COMMONWEALTH PENNSYLVANIA v. SAMUEL JONES (05/26/88)

filed: May 26, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL JONES, APPELLANT



Appeal from the Judgment of Sentence March 9, 1987 in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 8-86-2086/91, 2854/59 9/86-3266/69, 3310/16

COUNSEL

Paul S. Herzberg, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

McEwen, Olszewski and Cercone, JJ.

Author: Cercone

[ 374 Pa. Super. Page 433]

This is a consolidated appeal by appellant, Samuel Jones, from judgments of sentence for robbing taxicabs. After

[ 374 Pa. Super. Page 434]

    two trials by jury, appellant filed post-verdict motions which were denied by the court below. He was sentenced to consecutive terms of five (5) to ten (10) years incarceration on three of the robbery offenses in accordance with Section 9713 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S.A. § 9713, (Act), which concerns robberies committed on or near public transportation facilities and a one (1) to two (2) year consecutive sentence for conspiracy. Appellant's motion to modify sentence was denied by the court. This appeal followed.

Appellant seeks this court's review of the following issues: whether the lower court erred by (1) demonstrating to the jury, during its charge, an example of conduct from which it could infer intent of the actor to place the victim in fear of immediate serious bodily injury; (2) denying appellant's voir dire questions; (3) allowing alleged hearsay testimony of a Commonwealth witness; (4) allowing the prosecutor to make prejudicial statements; and (5) finding Section 9713 of the Act not to be in violation of the Equal Protection Clause of the Fourteenth Amendment.

Preliminarily, we note that appellant has waived the first two issues. Appellant complains that the judge prejudiced the jury during his charge by using his fingers to simulate a gun and pointing them at his head as an example of conduct from which they could infer intent to place the victim in fear of immediate serious bodily injury. At the conclusion of the court's charge to the jury defense counsel stated that he thought the jury would focus on the court's example. He therefore requested that the court also emphasize the fact that the victim was not injured, but did not specifically object to the courts' simulation. Counsel's request was not a substitute for a specific objection. Cf. Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313, n. 4 (1978). Likewise, appellant's allegation that the court rejected his proposed voir dire questions is also waived. Perusal of the record failed to uncover a statement of the proposed questions; they are only contained in the argument portion of appellant's brief. This court has

[ 374 Pa. Super. Page 435]

    long held that it cannot consider anything which is not part of the record in the case. See McAllonis v. Pryor, 301 Pa. Super. 473, 448 A.2d 5 (1982). Information located only in a party's brief is not a part of the record. See Pa.R.A.P. 1921.

Appellant's third issue raises the question whether the court erred in allowing the hearsay testimony of the victim, Mr. Deans, a taxi-cab driver, to be admitted at trial. Specifically, appellant, who robbed Mr. Deans, contends that Mr. Deans could not identify him at trial as the person who robbed him so that any statements by Deans regarding what appellant said to him were hearsay statements because they were ostensibly made by a third person not present in court. Appellant's argument is invalid because the testimony to which appellant objects consisted of Mr. Deans' version of what the passenger (robber) related to him regarding the passenger's destination. When a witness testifies that someone said something to him and the purpose is not to show that what was said was true but that the statement was made, the testimony is not hearsay but instead a "verbal act". Cf. Commonwealth v. Lawson, 315 Pa. Super. 84, 461 A.2d 807 (1983). See also McCormick on Evidence § 246 at 548 (2d ed. ...


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