Appeal from the Judgment of Sentence entered February 18, 1987, Court of Common Pleas, Philadelphia County, Criminal Division at Nos. 86-03-3991, 3394-3396.
Val P. Wilson, Philadelphia, for appellant.
Joann Verrier, Asst. Dist. Atty., Philadelphia, for Com.
Cirillo, President Judge, and Brosky, McEwen, Del Sole, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Del Sole, J., files a concurring opinion. Beck, J., files a concurring statement. Tamilia, J., concurs in the result. Popovich, J., files a concurring and dissenting opinion.
[ 388 Pa. Super. Page 328]
Stephen Barnes was convicted of robbery, criminal conspiracy and possessing instruments of crime. The Honorable Marvin R. Halbert heard and denied post-trial motions. Judge Halbert sentenced Barnes to serve an aggregate term of fifteen to thirty years' imprisonment.
Barnes appealed, raising numerous allegations of trial court error. The appeal was submitted on briefs. Prior to a decision, this court ordered argument of the case before the court en banc to consider whether the Career Criminal Program of the Philadelphia County District Attorney's Office was constitutionally valid despite the Commonwealth's failure to demonstrate the existence of established guidelines governing inclusion in the program and that appellant fell within any such guidelines.
[ 388 Pa. Super. Page 329]
This appeal was scheduled along with Commonwealth v. Simmons, 388 Pa. Super. 271, 565 A.2d 481 (1989), to consider the issue presented in both appeals relating to the Career Criminal Program. In deciding the Simmons appeal, we concluded that the defendant's right to a non-jury trial under Pa.R.Crim.P. 1101 had not been violated and that the trial judge had not abused his discretion in rejecting a motion for recusal. We further concluded that the broad issue of the viability of the Career Criminal Program, and the review and evaluation of procedural program guidelines is beyond the appellate jurisdiction of this court. Commonwealth v. Simmons, supra.
On this appeal, Barnes challenges his trial in the Career Criminal Program, conceding that the program itself is constitutionally permissible. Barnes claims that he was entitled to a hearing at which the Commonwealth would have been required to provide the criteria governing assignments to the program and to prove that defendant met the criteria for inclusion. In fact, Barnes did have a hearing on the career criminal aspect of his omnibus pre-trial motion dated October 2, 1986. N.T., dated October 2, 1986, pages 5 -- 23. Judge Halbert found no prejudice to defendant Barnes as a result of his inclusion in the program. At argument on post-verdict motions, counsel for Barnes was again invited by the court to submit evidence of prejudice arising from Barnes' inclusion in the Career Criminal Program. Court-appointed counsel, Van Pleet Wilson, responded thusly:
Mr. Wilson: The prejudice is that, frankly, there are a lot of judges who are quite irresponsible and who don't sentence properly and we were deprived of our right to go in front of those irresponsible judges. That sounds cynical, but that's how it is in this city.
The Court: We are not talking about the sentencing posture. We are talking about acting as a referee, as I did, at the trial level. What was the prejudice?
[ 388 Pa. Super. Page 330]
Mr. Wilson: Your Honor, again, I don't see any prejudice to the factual determination of guilt or innocence. I think you conducted a very fair trial.
N.T. dated February 18, 1987, page 9.
In the Argument section of Barnes' Brief for Appellant, he presents a consolidation of his first five questions on appeal as follows:
THE PLACEMENT OF APPELLANT INTO THE CAREER CRIMINAL PROGRAM WITHOUT A HEARING WAS ERROR, THE DENIAL OF APPELLANT'S REQUEST FOR A HEARING WAS ERROR, THE REFUSAL OF THE PROSECUTOR TO DIVULGE THE CAREER CRIMINAL GUIDELINES WAS ERROR AND A VIOLATION OF THE TRIAL JUDGE'S ORDER TO DO SO, THE PROCEDURAL APPLICATION OF THE CAREER CRIMINAL PROGRAM IN THE INSTANT CASE WAS ERROR AND ALL OF THE ...