Appeal from Judgment of Sentence November 8, 1985, in the Court of Common Pleas of Philadelphia County, Criminal, No. 8501-1360.
Howard Kaiser, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Olszewski, Kelly and Hester, JJ.
[ 379 Pa. Super. Page 436]
This is an appeal from the judgment of sentence following appellant's conviction for theft of industrial valves from a Gulf Oil Refinery. We affirm.
[ 379 Pa. Super. Page 437]
The facts giving rise to appellant's arrest and conviction are summarized below. In December of 1984, Gulf Oil received information that a number of large industrial valves were disappearing from the refinery. The fire marshall at the refinery, Timothy Stell, also received anonymous phone calls advising him to be on the lookout for a blue Chevy van which was seen on the refinery premises. Based on this information, the fire marshall and a security lieutenant undertook a surveillance operation at the valve areas.
On December 31, 1984, appellant entered the refinery premises in a blue Chevy van. From about 70 yards away, Stell observed appellant and another man loading valves into the blue van. The van, driven by appellant, then left the valve area. Stell radioed his observation to the security lieutenant who, upon stopping the van, observed four valves in the back. When stopped by the lieutenant, appellant first claimed he was on the premises in the employ of a contractor. Then, however, appellant sped away in the van. A chase ensued with appellant driving the van at speeds up to 50 m.p.h. through the narrow lanes of the refinery. Finally, appellant crashed his van through a padlocked chain link gate and proceeded onto a public highway. A short time later, one of the valves was recovered on the highway which was used by appellant as his escape route. The three remaining valves were recovered still later in the back of a pickup truck. Appellant was ultimately traced through the license plate of the van and charged with theft by unlawful taking and receiving stolen property.
Appellant waived his jury trial right and appeared before the Honorable John A. Geisz on April 12, 1985. Appellant pled guilty to the charges entered, but testified that he stole only one valve which he pushed out of the van after crashing through the padlocked gate. The court found that appellant had stolen all four valves, valued in excess of $3,800.00. As no post-trial motions were filed, the court sentenced appellant to eighteen to thirty-six months imprisonment on June 25, 1985. Appellant, who had been released
[ 379 Pa. Super. Page 438]
on bail on January 25, 1985, continued on bail pending sentence which was to commence on July 1, 1985. On July 1, 1985, appellant filed a petition for vacation or modification of sentence stating that he would cooperate with the District Attorney's office in regard to other persons who may have been involved in taking property from Gulf Oil Corporation. The sentence of the court was vacated and a new date for sentencing was scheduled for August 15, 1985. This date, however, was continued again until November 8, 1985, as the prosecutor informed the court that appellant was cooperating with the police in a further investigation. Finally, on November 8, 1985, the court's sentence of June 25, 1985 was reimposed. On November 15, 1985, appellant filed another petition for vacation or modification of sentence. This petition was denied on December 4, 1985. Notice of appeal to the Superior Court was filed on January 2, 1986. This appeal was dismissed on September 19, 1986, for failure of counsel to file an appellate brief. Commonwealth v. DeSanto, No. 89 Philadelphia 1986. On December 28, 1987, appellant filed a petition under the Post Conviction Hearing Act requesting leave to appeal to the Superior Court nunc pro tunc. This petition was granted on January 26, 1988, and nunc pro tunc notice of appeal was filed on February 17, 1988.
Appellant presents the following two issues for our review:
1. Whether the trial court erroneously applied the sentencing guidelines and otherwise abused its discretion in imposing sentence, and/or whether trial counsel was ineffective for failing to advocate and/or preserve this issue for appeal.
2. Whether the sentence imposed should be vacated and the case remanded for resentencing pursuant to Commonwealth v. Sessoms, and/or whether trial counsel was ineffective for failing to advocate and/or preserve this issue for appeal.
As appellant is challenging the discretionary aspects of his sentencing, we must initially ...