Commonwealth v. Hailey , 332 Pa. Super. 167 ( 1984 )

BROSKY, Judge:

This appeal is from judgment of sentence imposed subsequent to conviction of robbery, conspiracy and theft. Appellant raises seven issues on appeal. First, that trial counsel was ineffective in not raising in post-trial motions the testimony of the alleged victim and investigating detective regarding the prearrest photographic identification as the jury could have inferred prior criminal activity of appellant. Second, that trial counsel was ineffective for eliciting during cross-examination that appellant was incarcerated as the same inference could have been drawn. Third, that trial counsel was ineffective for not introducing at the hearing on Suppression of Identification by the alleged victim evidence that she had stated at the Preliminary Hearing that she was unable to identify appellant. Fourth, that trial counsel was ineffective for not making any opening statement to the jury. Fifth, that the categorization of appellant by the District Attorney as a “Career Criminal” thereby placing him before one of three designated judges deny appellant his right to due process and a fair trial; the classification was incorrectly applied to appellant since he did not have two prior convictions; and the classification violates appellant’s right to equal protection under the United States and Pennsylvania Constitutions as it is vaguely drafted and violates his right to due process since it allows for arbitrary and capricious application and enforcement. Sixth, that the trial court erred in charging the jury that evidence of flight could be considered as an indication of guilt. Seventh, that the sentencing court improperly considered a prior conviction overturned on constitutional grounds.

Appellant raises numerous assignments of error, several of which are framed in terms of trial counsel’s ineffectiveness. Since appellant is now represented, for the first time, by counsel other than trial counsel, these issues are properly before us. Commonwealth v. Lewis, 463 Pa. 180, 344 A.2d 483 (1975).

The instant charges arose out of the armed robbery of the Jet Bar by two men who wore stocking masks and a third man identified as appellant by the barmaid Shardell Thompson. Appellant first argues that it was error to permit the barmaid and a police officer to testify regarding a photographic identification. We disagree. In making a determination as to what constitutes error when reference is made to photographs of the accused, the controlling question is whether or not a juror could reasonably infer from such reference that the accused had engaged in prior criminal activity. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). The facts in the instant case reveal that the witness was shown approximately eight photographs during a police interview at the witness’s home. There was no reference to the photographs as “mug shots” or any other indication that the photographs came from police files. The photographs themselves were not displayed to the jury or introduced into evidence. The only connection to the police is the fact that a police officer showed the photographs to the witness. This is insufficient to raise an inference of prior criminal activity. Commonwealth v. Reiss, No. 105 E.D.1982 (Pa. Oct. 27, 1983).

Appellant next contends that trial counsel was ineffective when he elicited, during cross-examination, that appellant was incarcerated. This occurred during testimony regarding a lineup held in connection with the instant case and in which all lineup participants wore prison garb. Assuming the references to institutional clothing did imply that appellant was incarcerated, this would not be grounds for relief. The rule is that references to past criminal conduct is prohibited. The fact that an accused is incarcerated on the present charges does not imply past criminal conduct on his part. Commonwealth v. Davis, 308 Pa.Super. 398, 454 A.2d 595 (1982).

Appellant also urges us to find that counsel was ineffective for not introducing evidence during the suppression hearing that Ms. Thompson failed to identify appellant at the preliminary hearing. During trial, counsel did question the witness concerning this issue. At issue at a hearing to suppress an out-of-court identification is the reliability of the out-of-court identification, herein the photographic and lineup identifications. The relevant factors are the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention at that time, the level of certainty demonstrated at the time of the out-of-court identification, the time between the crime and the identification, and the suggestiveness of the identification process. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979). Thus, the witness’s failure to identify appellant at the preliminary hearing is not an appropriate basis on which to base a suppression order nor does such a failure to identify preclude her in-court identification of him. Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980).

Appellant’s final contention as to trial counsel’s ineffectiveness concerns counsel’s failure to give an opening statement to the jury. Appellant, however, does not argue how he was prejudiced by this decision other than to make a general allegation that the opening statement plays a critical role in the trial and that counsel’s failure to give an opening statement was unreasonable. The test for ineffectiveness is whether some reasonable basis, designed to advance a client’s interest, exists for an attorney’s actions. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Absent some factual showing that the alternatives not chosen offered a potential for success substantially greater than the particular course chosen, we cannot find ineffectiveness. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). No such facts have been alleged by appellant to show that counsel’s decision not to give an opening statement was an unreasonable trial tactic or to show how it prejudiced appellant. Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983).

Appellant also challenges the administrative procedure employed by the Philadelphia District Attorney’s Office known as the Career Criminal Program. Appellant claims that cases in which the accused has certain prior convictions are assigned to one of three designated judges and this assignment effectively denies an accused his “right” to a non-jury trial because the trial judge knows the accused has prior convictions. Appellant’s argument must fail as it is based on an incorrect premise; an accused does not have an absolute right to a bench trial. Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983). Further, the fact that the trial judge is aware of an accused’s prior convictions does not automatically require that judge’s recusal. Commonwealth v. Edney, supra; Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980); see also, Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (admission of evidence of prior convictions harmless error in bench trial since trial judge presumed to disregard inadmissible evidence). Appellant’s other arguments with regard to the “Career Criminal” program are similarly unpersuasive.

Appellant next argues, that the trial judge erred in giving a flight charge to the jury. We disagree. There was sufficient circumstantial evidence to show that appellant knew he was or would be accused of committing a crime and that he fled from the police. See, Commonwealth v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969).

Finally, appellant argues that the sentencing court improperly considered a prior, reversed conviction. We agree.

Appellant here was previously convicted of murder as a juvenile. The Supreme Court of this Commonwealth reversed his conviction on constitutional grounds. On retrial he was found not guilty.

The law on this issue appears in Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975): a sentencing judge may not consider a conviction overturned on appeal on constitutional grounds. Even the possibility of it having been impermissibly considered was sufficient in Calvert to require resentencing.

Appellant’s case is even stronger. Here there is no doubt that the sentencing judge considered the constitutionally infirm conviction.¹

“Court: I am making it very clear to you so that if I am wrong you will be able to get it reversed. I am giving great weight to the fact he has already been sentenced to life imprisonment, that he was already convicted of shooting someone.” (N.T. Sentencing, P. 6).

As we read Calvert to require it, judgment of sentence is vacated and the case remanded for resentencing without consideration of appellant’s constitutionally infirm prior conviction.

MONTGOMERY, J. filed a concurring and dissenting opinion.

1 . The exact nature of the constitutional infirmity is, of course, not relevant to the application of the rule of Calvert. The infirmity in Calvert was different than in appellant’s reversal. But that is simply of no import for our purposes here.