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HomeMy WebLinkAbout99-1498 CRIMINALCOMMONWEALTH SCOTT V. VAILLANCOURT, JR.,: Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-1498 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Before HOFFER, P.J. OPINION HOFFER, P.J.: On November 16, 1999, defendant Scott V. Vaillancourt, Jr. was convicted, after a jury found him guilty of robbery and attempted aggravated assault. Although there were three (3) charges filed against him, he was acquitted on the possession of a prohibited offensive weapon charge. The defendant claims on appeal that the Court's imposition of the statutory mandatory minimum sentence of five (5) years pursuant to 42 Pa.C.S. §9712 was an error. defense counsel raises the issue that the defendant was possession of a prohibited offensive weapon, and is entitled to any reasonable inference that may result therefrom. have issued a mistrial sui sponte, More specifically, not found guilty of Commonwealth's witnesses and a failure to instruct the jury in regards to this behavior. In determining defendant's sentence, we relied on 42 Pa.C.S. §9712 which provides: Defendant also claims that the Court should because of the behavior of one of the Except as provided under section 9716, any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g), shall, if the person visibly possessed a firearm, or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough. The standard of proof governing the applicability of deadly weapon enhancement is preponderance of the evidence. See Commonwealth v. Ellis, 700 A.2d 948 (Pa. Super. 1997), citing Commonwealth v. McKeithan, 350 Pa. Super. 160, 540 A.2d 294 (1986). Although direct evidence is preferable, circumstantial evidence may prove possession of a deadly weapon. Commonwealth v. Ellis, 700 A.2d 948 (Pa. Super. 1997), citing Commonwealth v. McKeithan, 350 Pa. Super. 160, 540 A.2d 294 (1986). In McKeithan, the Court found that although the weapon employed by the defendant in committing aggravated assault was not found or seen, it will not prevent application of deadly weapon enhancement to a sentence. Additionally, where there is clear testimony that defendant possessed a gun at the initiation of a crime, it is irrelevant whether he possessed the gun throughout the duration of the criminal activity. See Commonwealth v. Bowen, 417 Pa. Super. 340, 612 A.2d 512 (1992). In determining the scope of 42 Pa.C.S. §9712, the defendant contends that nowhere in the testimony was a gun used or identified as being used by a 2 preponderance of the evidence. The Court in Commonwealth v. Healy, 343 Pa. Super 323, 494 A.2d 869 (1985) declined to construe §9712 so narrowly in contravention of the purpose of the section. In defining "visibly possessed," the Court interpreted the phrase to mean possession that manifests itself in the process of the crime. Id. at 870. This definition included situations where a firearm is visible to the eye of the victim or third party. Id. The definition additionally encompasses situations where a firearm is hidden, but has a visible effect on the victim. Id. In Healy, the Court held that this definition would cover an individual who points a firearm inside his pocket, and then threatens his victim by informing the victim that a firearm is aimed at the victim. Id. In the case at bar, it does not make a difference whether the victim could see the defendant visibly possessing a firearm. It is sufficient that the assailant visibly possessed a gun when he held an object that resembled a gun to the head at the victim's temple and said, "give me all your F-in money and weed. I'm serious. Or she is going to die".~ Although the victim did not actually see the defendant's weapon, she felt the barrel against her temple and suffered red marks all the way down her face.2 Moreover, the evidence showed several references to a gun being used and identified in the robbery by a preponderance of the evidence. Because the defendant possessed a firearm which was used to produce a visible effect on the Notes of Testimony November 15, 1999 (hereinafter "N.T." p. 11, lines 16-18. 2 N.T.p. 12. victim, this testimony provides enough evidence to impose the deadly weapon enhancement. Thus, the defendant's act falls squarely under the mandatory minimum five (5) year sentence of 42 Pa.C.S. §9712. Concerning defendant's contention that the trial judge failed to adequately instruct the jury as to the behavior of the Commonwealth's witness, this line of argument is without merit. Nowhere in the transcript does it show that any Commonwealth witness made these statements. We initially note that the alleged statements were made not by a Commonwealth witness, but by a witness called by defense counsel during its case-in-chief. According to the defense, Robert Hill allegedly stated something along the lines of, "Well, we haven't heard from him yet, we haven't heard his accent. Why don't we hear from him?" in full hearing of the jury, while pointing to the defendant.3 This defense witness actually stated, "And I know your client did not say one word yet. Let's hear his accent. He has a voice that there is no way that - _,,4 and, "but I heard. Your boy didn't say nothing yet. Why don't your boy get up here and talk so everybody can see - _,,5 and, "1 didn't hear your boy say anything yet, yesterday or today.''6 These statements were made on direct examination, by a defense witness, and now the defense wants to exclude these remarks because they are against the defendant's interest. Moreover, it is obvious that these remarks were not made in the context of the Commonwealth Defendant's Statement of Matters Complained of on Appeal, filed July 21, 2000. N.T.p. l14, lines 24-25 through p. l15, line 1. N.T.p. 121, lines 16-18. 4 attempting to identify the defendant through voice identification as the defense asserts.7 With regard to the behavior of the witness, nothing in the transcript shows that the defense witness was indicating while making the statements. Moreover, the defense asserts that it made objections to the trial judge. The defense only made one (1) objection to one (1) of these statements. This objection was raised after the last statement above was made, and was a request that the defense witness's remarks be stricken from the record. Here, defense counsel did not qualify which statement or statements he wished to be removed from the record. Due to his lack of conciseness, we read defense counsel's objection to mean the entire witness's testimony. We believe that this defense witness's statements were material to the case in that they would have assisted the jury in reaching a verdict. It was within our discretion to admit this witness's testimony because most of his statements were about the night in question. Moreover, the defense states that the witness was so egregious that the Court should have ordered a mistrial sui sponte. The Court charged the jury "not to draw any inference of guilt or any other inference adverse to the defendant from the fact that he did not testify.''s Defense counsel had the opportunity to address the Court before the charge to the jury as well as after the charge. The Court asked counsel whether he had made any misstatements of fact and/or N.T.p. 122, lines 1-2. Defendant's Statement of Matters Complained of on Appeal, filed July 21, 2000. N.T.p. 160, lines 8-10. errors of law, to which counsel said no. He then asked counsel whether they were satisfied with the charge to which defense counsel stated, "the defense is Nowhere in the transcript is there an objection by defense counsel satisfied .,,9 regarding an adequate or inadequate concerning his own witness's testimony. instruction being given to the jury If defense counsel wished to have any non-standard instruction given to the jury, he had more than one opportunity to ask the Court to do so. Additionally, if defense counsel would have raised the issue when asked, the Court would have entertained the idea of giving a limited instruction to the jury. A fair reading of the transcript in its entirety shows the defense taking witnesses out of context, attributing its own belief to the record, and making misstatements of fact. Such a reading is inaccurate. 9 N.T.p. 173, lines 19-20.