Appeal from the judgment of sentence July 02, 1987 in the Court of Common Pleas of Delaware County, criminal, No. 7541-85.
Thomas A. Dreyer, Media, for appellant.
Ann A. Osborne, Assistant District Attorney, Media, for the Com., appellee.
Olszewski, Beck and Johnson, JJ.
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The principal issue presented by this case is whether a defendant commits one robbery or two if he threatens to kill two employees of a business establishment during the course of a single theft from the business establishment. We find that under these circumstances, a defendant may be punished for two independent violations of the robbery statute.
This is an appeal by Albino Rozplochi from a judgment of sentence consisting of consecutive terms of imprisonment for two counts of robbery*fn1 and a further consecutive term of imprisonment for the offense of former convict not to own firearm.*fn2 Appellant contends that his trial counsel was ineffective for failing to challenge the sufficiency of the evidence of one of the counts of robbery, for failing to
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challenge the sufficiency of the evidence of the firearm offense, and for failing to request a cautionary instruction regarding identification testimony. Appellant also contends that the trial court erred by refusing to suppress identification testimony. After careful consideration, we affirm the judgment of sentence.
The relevant facts are accurately summarized in the opinion of the trial court.
On September 18, 1985, at approximately 8:45 A.M. Barbara Cavaliere and Elizabeth DeJesse, manager and employee, respectively, of the Financial Exchange Company, were inside [the] company office preparing to open for the day's business. The company is located at 1130 Chester Pike, Sharon Hill, Pennsylvania, and is situated inside of an ACME food store at that address. While preparing to open, Ms. Cavaliere heard a knock on the office door and proceeded to look out of a window located near the door to determine the identify of the person seeking entry. She saw the Defendant standing outside the door and inquired as to how she might help him. Defendant answered that he had a package from her superior, "Bobby Louisa", and held up a picture identification card and a manila envelope which resembled the envelopes she received daily from the Department of Public Welfare. Ms. Cavaliere, again asked the Defendant to state his business and he replied that he was "on-route" and was in a hurry. Ms. Cavaliere started to admit the Defendant but asked for a closer inspection of his identity card. However, when she opened the door, she saw that Defendant had pulled a revolver from the manila envelope and, upon seeing this, both she and Ms. DeJesse attempted to push the door closed in order to keep the Defendant out. Unfortunately, they were forced to relent in their efforts when Defendant, while brandishing the gun, threatened to "blow them away".
Once in the office, Defendant pushed Ms. DeJesse against a wall in front of the company safe and pushed Ms. Cavaliere up to the safe. At gunpoint, Ms. Cavaliere
[ 385 Pa. Super. Page 361]
emptied the safe of approximately $22,000.00 in cash and food stamps which Defendant stuffed into the manila envelope. When the envelope could hold no more, Defendant grabbed a company money bag and began filling it.
At some point there was a knock at the door. In response, Defendant cocked the gun, held it to the back of Ms. Cavaliere's head and demanded that she hurry stating "if I don't get out of here . . . you aren't either". Ms. Cavaliere noted that the gun was loaded and, indeed she was so close to it that she could see the bullets inside. Moments later, Defendant left the store with the money and food stamps. The entire incident took approximately ten minutes during which time the Defendant was in full view of his victims for almost the entire time.
Trial Court Op. at 1-2 (citations to record omitted). We further note that in her trial testimony, Ms. DeJesse specified that appellant pointed his gun at her and directed his threats at her as well as at Ms. Cavaliere.
Appellant was apprehended and charged with numerous offenses including one count of robbery based upon his conduct toward Ms. Cavaliere and one count of robbery based upon his conduct toward Ms. DeJesse. On April 22, 1986, following a jury trial, he was found guilty of both counts of robbery, as well as of theft by unlawful taking, theft by receiving stolen property, possession of an instrument of crime, simple assault, recklessly endangering another person, and terroristic threats. On July 14, 1986, following a separate bench trial, appellant was convicted of former convict not to own firearm. He was sentenced on July 2, 1987 to consecutive sentences of ten to twenty years for the first robbery count, ten to twenty years for the second robbery count, and one to five years for former convict not to own firearm. The court found that the remaining crimes had merged with the robbery convictions.
Appellant filed a timely notice of appeal from his judgment of sentence. He obtained new counsel for the appeal, and now asserts that his trial counsel provided ineffective representation.
[ 385 Pa. Super. Page 362]
There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice, i.e. had an adverse effect on the outcome of the proceedings.
Commonwealth v. Davis, 518 Pa. 77, 83-84, 541 A.2d 315, 318 (1988). See also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Petras, 368 Pa. Super. 372, 534 A.2d 483 (1987). Applying this standard, we find that appellant's allegations of ineffectiveness are without merit.
Appellant first argues that his trial counsel should have challenged the sufficiency of the evidence as to one of the counts of robbery. He emphasizes that the assets which he stole belonged exclusively to the Financial Exchange and that he did not at any time attempt to confiscate the private property of either Ms. Cavaliere or Ms. DeJesse. He further notes that although he threatened both employees, only Ms. Cavaliere was compelled to hand him cash belonging to the Financial Exchange. He therefore reasons that only one robbery took place and that the victim of that robbery was the Financial Exchange, rather than either of the women he held at gunpoint.
Whether a defendant commits multiple robberies if he threatens two people while attempting to steal the property of their common employer is a question of first impression for the appellate courts of Pennsylvania. See ...