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September 30, 1997


Appeals from the P.C.R.A. and Order of the Court of Common Pleas, Westmoreland County, Criminal Division, at No. 1190 C 1994. Before BLAHOVEC, J.

Before: Johnson, Schiller and Brosky, JJ. Opinion BY Brosky, J. Dissenting Opinion BY Schiller, J.

The opinion of the court was delivered by: Brosky


Filed September 30, 1997

These consolidated appeals are from the orders of the lower court which imposed sentence and granted appellant leave to appeal from the judgment of sentence nunc pro tunc but otherwise denied appellant's request for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-§ 9546. *fn1 Appellant presents the following issues for review: (1) whether the sentencing court misapplied the deadly weapon enhancement in imposing sentence; (2) whether the method of selecting the pool of prospective jurors deprived appellant of his federal and state constitutional rights to a trial by a jury of his peers; (3) whether the evidence was sufficient to sustain appellant's conspiracy conviction; (4) whether the trial court erred in admitting the hearsay statements of an alleged co-conspirator; (5) whether trial counsel was ineffective in failing to present an alibi defense; (6) whether trial counsel was ineffective in cross-examining the Commonwealth's witnesses; and (7) whether trial counsel was ineffective in failing to adequately preserve appellant's claims in post-trial motions. For the reasons set forth below, we vacate the judgment of sentence and remand for further proceedings consistent with this Discussion.

This case has its genesis in a failed robbery attempt of Sobran's jewelry store on December 1, 1993. Following investigation, arrest warrants for appellant, Orlando Greene, and his brother, Daniel Greene, were issued. Appellant was ultimately apprehended in April of 1994. Daniel Greene was not arrested until July, 1994, however. Although appellant and his brother were to be tried jointly, Daniel entered a guilty plea. *fn2 Appellant filed an omnibus pre-trial motion which the trial court denied. Following a trial in February of 1995, the jury convicted appellant of the crimes of robbery, *fn3 criminal conspiracy *fn4 and receiving stolen property. *fn5

The lower court sentenced appellant on March 30, 1995 to an aggregate period of ten and one-half (10 1/2) to twenty-one (21) years of imprisonment. *fn6 Post-sentencing motions were filed on appellant's behalf by trial counsel, Sharon Wigle, Esq. The trial court denied appellant's motions. Appellant asked counsel to file an appeal. However, the notice of appeal was defective and returned to Attorney Wigle. Counsel never refiled the notice of appeal.

New counsel, Eric Bononi, Esq. was subsequently appointed to represent appellant and filed a post-conviction petition on his behalf. After a hearing on the petition, the lower court reinstated appellant's right to a direct appeal nunc pro tunc, but otherwise denied his request for relief. Appellant timely appealed. *fn7

Appellant first challenges the trial court's application of the deadly weapon enhancement. This issue concerns the sentencing Judge's application of the Sentencing Guidelines and, hence, implicates the discretionary aspects of sentence. See, e.g., Commonwealth v. Bowen, 417 Pa. Super. 340, 345 n.3, 612 A.2d 512, 514 n.3 (1992), allocatur denied, 533 Pa. 629, 621 A.2d 577 (1993) (regarding sentencing court's failure to apply deadly weapon enhancement as a challenge to the discretionary aspects of sentence). Unlike a challenge to the legality of sentence, there is no absolute right to direct appellate review of a discretionary sentencing claim. Commonwealth v. Hoag, 445 Pa. Super. 455, 458, 665 A.2d 1212, 1213 (1995). Rather, a party who desires to raise such matters must petition this court for permission to appeal and demonstrate that there is a substantial question that the sentence is inappropriate. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Hoag, supra; Commonwealth v. Dalberto, 436 Pa. Super. 391, 402, 648 A.2d 16, 21 (1994), allocatur denied, 540 Pa. 594, 655 A.2d 983 (1995), cert. denied, U.S. , 116 S. Ct. 75, 133 L. Ed. 2d 34 (1995).

In fulfilling this requirement, the party seeking to appeal must include in his or her brief a concise statement of the reasons relied upon in support of the petition for allowance of appeal. Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Saranchak, 544 Pa. 158, 176, 675 A.2d 268, 277 (1996), cert. denied, U.S. , 117 S. Ct. 695, 136 L. Ed. 2d 617 (1997); Commonwealth v. Dalberto, supra. Appellant has failed to comply with this requisite here. While this omission ordinarily would preclude our review of his claim, the Commonwealth has not objected to this defect. We will accordingly ascertain whether a substantial question exists based on the allegations set forth in appellant's brief. Commonwealth v. Fusco, 406 Pa. Super. 351, 354, 594 A.2d 373, 374 (1991).

The determination of whether a substantial question exists must be made on a case-by-case basis. Commonwealth v. Koren, 435 Pa. Super. 499, 503, 646 A.2d 1205, 1207 (1994). It is only where an aggrieved party can articulate clear reasons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. Commonwealth v. Dalberto, 436 Pa. Super. at 402, 648 A.2d at 22; Commonwealth v. Koren, 435 Pa. Super. at 503, 646 A.2d at 1207-1208. This court has been inclined to find that a substantial question exists where the appellant advances a colorable argument that the sentencing Judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Dalberto, supra; Commonwealth v. Koren, 435 Pa. Super. at 503-504, 646 A.2d at 1208.

Appellant questions the sentencing court's application of the deadly weapon enhancement. We have consistently deemed similar claims to present a substantial question for review. See Commonwealth v. Bowen, supra (trial court's refusal to apply deadly weapon enhancement raised a substantial question for review). We will therefore address the merits of appellant's sentencing claim.

The standard of review in sentencing matters is well settled. Imposition of a sentence is vested in the discretion of the sentencing court[, whose decision] will not be disturbed absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment.... On appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Smith, 543 Pa. 566, 570-571, 673 A.2d 893, 895 (1996) (citations omitted). We will examine the sentencing court's decision and appellant's arguments in light of this standard.

Appellant asserts that he is not subject to the deadly weapon enhancement because the gun was not on his person or within his immediate physical control at the time of the robbery. Appellant's Brief at 13-14. We are constrained to agree. To facilitate our analysis of this issue, it is first necessary to review the circumstances giving rise to appellant's sentence and the law pertinent thereto.

Prior to sentencing, the Commonwealth advised appellant of its intent to request imposition of a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712(a). At the time appellant was sentenced, this statute provided that any person convicted of, inter alia, the crime of robbery as defined in 18 Pa.C.S.A. § 3701(a) (1) (ii), was to receive a minimum sentence of at least five years if he or she visibly possessed a firearm or replica thereof during the commission of the crime. 42 Pa.C.S.A. § 9712(a). *fn8 In construing this provision, this court has held that an unarmed accomplice may be subject to the mandatory minimum sentence if he had knowledge that his co-felon visibly possessed a firearm during the crime. See Commonwealth v. Matos, 382 Pa. Super. 401, 405, 555 A.2d 901, 903 (1989), allocatur denied, 525 Pa. 597, 575 A.2d 563 (1990) and the authorities cited therein.

However, the sentencing court did not impose the mandatory minimum sentence in this case. Rather, the sentencing court properly compared the mandatory minimum sentence with the minimum sentence recommended by the sentencing guidelines. See Commonwealth v. Morgan, 425 Pa. Super. 344, 353-354, 625 A.2d 80, 84-85, allocatur denied, 535 Pa. 667, 634 A.2d 1115 (1993) (sentencing court must consider both the mandatory minimum sentence and the guidelines sentence where the guidelines suggest a longer sentence than the mandatory minimum required). Upon making this comparison, it is evident that the standard and aggravated ranges of the guidelines exceed the mandatory minimum sentence, even without application of the deadly weapon enhancement. See 204 Pa. Code § 303.9 (March 1992). *fn9 The sentencing court thus properly exercised its discretion to impose the guidelines sentence rather than the mandatory minimum sentence.

Before the deadly weapon enhancement can be applied to a guidelines sentence, the sentencing Judge must first determine whether the defendant possessed a deadly weapon during the commission of the current conviction offense. 204 Pa. Code § 303.4(a) (March 1992). For purposes of this section, the term "possessed" is statutorily defined to mean that the firearm was "on the defendant's person or within his immediate physical control." 42 Pa.C.S.A. § 2154(b). As construed by this court, "this provision reflects a limitation on the imposition of the deadly weapon enhancement and precludes use of it in situations wherein only a defendant's accomplice possesses the weapon and the weapon used is not within the defendant's immediate physical control." Commonwealth v. Bowen, 417 Pa. Super. at 346-347, 612 A.2d at 515.

In this case, the sentencing court concluded that because appellant had knowledge that Octavius Settles visibly possessed a firearm during the robbery, he was subject to the deadly weapon enhancement. Trial Court Opinion, filed 11/1/95, at 10. The sentencing Judge thus extended the holding of Commonwealth v. Matos to a guidelines sentence in contravention of section 2154(b) and Commonwealth v. Bowen. Id. at 10-11. The sentencing court did not cite any authority for its novel ...

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