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COMMONWEALTH PENNSYLVANIA v. DERRICK GIBSON (12/22/89)

filed: December 22, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DERRICK GIBSON, APPELLANT



Appeal from the Judgment of Sentence entered January 11, 1988 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 85-11-1145.

COUNSEL

Helen Marino, Asst. Public Defender, Philadelphia, for appellant.

JoAnn Verrier, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Tamilia, Kelly and Hester, JJ.

Author: Kelly

[ 389 Pa. Super. Page 521]

Appellant, Derrick Gibson, appeals from judgment of sentence imposed following his jury trial conviction of robbery. Appellant seeks discharge or a new trial based upon his contentions that: his rights to due process and equal protection were denied by his inclusion in a career criminal program; his right to an impartial jury was denied by the trial court's restriction of the scope of voir dire; he was prejudiced by improper references to police photographs; he was prejudiced by inaccurate and incomplete jury instructions; and, he was prejudiced by prosecutorial misconduct in the prosecution's closing argument. We find no merit in the contentions and affirm judgment of sentence imposed by the trial court.

[ 389 Pa. Super. Page 522]

FACTS AND PROCEDURAL HISTORY

On September 24, 1985, Mrs. Ruth Flounders went to visit her friend, Mr. Frank Keisler. At about 11:00 p.m., she decided to go home. Mr. Keisler offered to walk her home to make sure she reached her home, a few blocks away on Forty Third Street in Philadelphia, safely.

The entry to Mrs. Flounders' home has an outside door, a foyer, and an inside door. After Mrs. Flounders opened the outside door, but before she entered the inside door, appellant appeared and pushed himself and Mrs. Flounders into the foyer and demanded money. Mr. Keisler had already entered the foyer. Appellant had his hand covered by a towel. Both Mrs. Flounders and Mr. Keisler believed appellant had a gun under the towel. While appellant was distracted by Mr. Keisler, Mrs. Flounders was able to flee into the house. Appellant then rummaged through Mr. Keisler's pockets with the hand which was not covered by the towel. Mr. Keisler took advantage of this opportunity, shoved appellant, and managed to escape into the house. Appellant broke the lead glass panels of the inside door attempting to gain entry, but fled the scene when Mr. Flounders yelled out as he joined his wife and Mr. Keisler at the inside door to help repel appellant's efforts to enter the house.

Both Mrs. Flounders and Mr. Keisler gave descriptions of appellant to the police shortly after the incident. Mr. Keisler was able to identify appellant from among several hundred police photographs. He later identified appellant again from a separate photo array. Mrs. Flounders indicated that she could not make a positive identification from the police photographs. Prior to the preliminary hearing, at defense request a line-up identification procedure was conducted using other young men with similar characteristics selected to be in the line-up by defense counsel. Both Mrs. Flounders and Mr. Keisler, separately, positively identified appellant as their attacker.

[ 389 Pa. Super. Page 523]

On November 18, 1987, following a two day jury trial, appellant was found guilty of robbery. Post-verdict motions were filed, argued, and denied. On January 11, 1988, appellant was sentenced to a one and one-half (1 1/2) to ten (10) year term of imprisonment. Timely notice of appeal was filed.

I. CAREER CRIMINAL PROGRAM

Appellant first contends, generally, that he was denied due process and equal protection of the laws by the inclusion of his case in Philadelphia's Career Criminal Program. In addition to his general challenge to the program, appellant contends specifically that the program improperly interfered with his right to a non-jury trial pursuant to Pa.R.Crim.P. 1101, and that the Commonwealth failed to establish that his case was appropriate for inclusion in the program.

A. GENERAL CHALLENGE

Appellant's general challenge to career criminal programs is vague and conclusory. He argues that programs such as Philadelphia's, which involve not only the special allocation of prosecutorial resources but also the designation of certain common pleas court judges to hear career criminal cases, "should have no place in the administration of criminal justice." (Appellant's Brief at 61). We find no reason to reconsider, as appellant requests, the numerous prior decisions of this Court rejecting various constitutional challenges to Philadelphia's Career Criminal Program. See Commonwealth v. Barnes, 388 Pa. Super. 327, 565 A.2d 777 (1989); Commonwealth v. Simmons, 388 Pa. Super. 271, 565 A.2d 481 (1989); Commonwealth v. Vinson, 361 Pa. Super. 526, 522 A.2d 1155 (1987); Commonwealth v. Stinnett, 356 Pa. Super. 83, 514 A.2d 154 (1986); Commonwealth v. Carter, 347 Pa. Super. 624, 501 A.2d 250 (1985), allocatur denied 517 Pa. 591, 535 A.2d 81 (1987); Commonwealth v. Kellum, 339 Pa. Super. 513, 489 A.2d 758

[ 389 Pa. Super. Page 524]

(1985); Commonwealth v. Hailey, 332 Pa. Super. 167, 480 A.2d 1240 (1984).

B. Pa.R.Crim.P. 1101

Appellant also contends more specifically that the assignments of his case to the career criminal program infringed upon his "right" to a non-jury trial pursuant to Pa.R.Crim.P. 1101. Appellant cites Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973) and Commonwealth v. Jones, 259 Pa. Super. 103, 393 A.2d 737 (1978), in support of his argument that recusal must be granted if the trial judge becomes aware of inadmissible evidence of prior convictions or other seriously prejudicial evidence during pre-trial proceedings. Appellant concludes that assignment of career criminal cases to particular judges improperly infringes upon his qualified right to a non-jury trial pursuant to Pa.R.Crim.P. 1101 as set forth in Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), by making him choose between a jury trial and a bench trial before a judge tainted with knowledge of his prior record via the fact of his inclusion in the career criminal program.*fn1

This contention has been fully addressed and unequivocally rejected previously. See Commonwealth v. Simmons, supra, 565 A.2d at 483; Commonwealth v. Stinnett, supra, 514 A.2d at 161; Commonwealth v. Carter, supra, 501 A.2d at 252-53; Commonwealth v. Kellum, supra, 489 A.2d at 759-61 & nn. 1-3; Commonwealth v. Hailey, supra, 480 A.2d at 1243. The only possible distinction between those cases and this, is that here appellant's entire

[ 389 Pa. Super. Page 525]

    prior criminal record consisted of juvenile delinquency adjudications which ordinarily could not be used for impeachment purposes at trial. See Commonwealth v. Case, 322 Pa. Super. 24, 469 A.2d 162 (1983), aff'd 513 Pa. 299, 520 A.2d 1373 (1987) (per curiam). This factual distinction does not compel a different result.

A party seeking recusal of the trial judge bears the burden of establishing the grounds for recusal. Commonwealth v. Reddix, 355 Pa. Super. 514, 522, 513 A.2d 1041, 1044 (1986). Participation of the trial judge in an earlier stage of proceedings or in a separate matter involving the same defendant does not, by itself, establish grounds for recusal. Commonwealth v. Sirbaugh, 347 Pa. Super. 154, 167, 500 A.2d 453, 459 (1985). Even the fact that the trial judge may have been made aware of improper evidence does not require recusal; because, a trial judge is presumed to be capable of disregarding improper evidence, including evidence of prior criminal acts. Commonwealth v. Davis, 491 Pa. 363, 371-72, 421 A.2d 179, 183 (1980); Commonwealth v. Stinnett, supra, 514 A.2d at 161; Commonwealth v. Carter, supra, 501 A.2d at 252-53. It is only when the evidence brought to the attention of the trial court is both inadmissible and highly prejudicial that recusal may be required. Commonwealth v. Lewis, 314 Pa. Super. 298, 303-04, 460 A.2d 1149, 1151-52 (1983).

This Court has held on several occasions that, absent exceptional circumstances, a trial court must grant a recusal motion following the withdrawal of a guilty plea. Commonwealth v. Simmons, 335 Pa. Super. 57, 483 A.2d 953 (1984) (collecting cases); Commonwealth v. Casella, 312 Pa. Super. 375, 458 A.2d 1007 (1983) (illustrating exceptional circumstances). Similarly, this Court held in Commonwealth v. Jones, supra, that a new trial was required based upon the specific prejudice arising from particular inferences which the trial court expressly drew from inadmissible prior conviction evidence considered by the trial court. 393 A.2d at 740. However, broader statements in Goodman and Jones, suggesting the desirability or propriety of

[ 389 Pa. Super. Page 526]

    recusal in cases not involving a risk of specific prejudice, are plainly dicta which has not been followed in subsequent cases where the issue was squarely presented. See Commonwealth v. Davis, supra; Commonwealth v. Stinnett, supra. Thus, despite reservations regarding the potential for prejudice in circumstances like those presented in Simmons and Jones, there is still a strong presumption that a trial judge will ordinarily be capable of ignoring inadmissible evidence. See generally Commonwealth v. Batty, 482 Pa. 173, 178, 393 A.2d 435, 438 (1978) (explaining the rationale for this presumption).

Moreover, in Commonwealth v. Sorrell, supra, our Supreme Court affirmed, as being within the sound discretion of the trial court, the trial court's decision to deny defendant Smith's motion for a non-jury trial based upon the fact that the trial court doubted its own impartiality following its exposure to the defendant's prior record during pre-trial proceedings. 456 A.2d at 1329. If, as appellant argues, Pa.R.Crim.P. 1101 was intended to confer a right to a non-jury trial before a trial judge free from any possible taint arising from knowledge of the defendant's prior record, then the appropriate course would have been for the trial court to recuse itself rather than to deny the motion for a non-jury trial. Our Supreme Court's approval of the denial of the motion for a non-jury trial under those circumstances exposes the fundamental flaw in appellant's contention. Succinctly, there was no "right" to a non-jury trial with which the career criminal program could improperly interfere. See Commonwealth v. Hailey, supra, 480 A.2d at 1242-43.

C. SELECTION CRITERIA

Finally, appellant contends that even if the program itself is constitutional, the assignment of his case to the program was not, as the prosecution failed to establish that his case properly fell within the program selection criteria. Appellant cites Commonwealth v. Sorrell, supra, and Commonwealth v. Carter, supra, in support of his

[ 389 Pa. Super. Page 527]

    argument that the Commonwealth is required to disclose the specific selection criteria applicable to the program and must establish that the case meets those criteria whenever a defendant challenges the assignment of his or her case to the program. We cannot agree.

Initially, we note and reemphasize this Court's previous declaration that an accused "has no substantive right in the less aggressive prosecutorial effort which is commonly afforded criminal defendants not prosecuted under career criminal programs." Commonwealth v. Stinnett, supra, 514 A.2d at 160. Appellants prosecuted under the program retain the right to be heard by themselves and counsel, to demand the nature and cause of the accusation against them, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in their favor, to have a speedy public trial by an impartial jury of their peers. They cannot be compelled to give evidence against themselves, nor can they be deprived of life, liberty or property, unless by the judgment of their peers or the law of the land. Pa.Const.Art. 1, sec. 9. None of these rights are in the least encroached upon by career criminal programs, nor has appellant asserted any such encroachment. Indeed, by reducing unnecessary continuances and ensuring accelerated and enhanced prosecutorial preparation, the assignment of a case to the career criminal program provides ...


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