COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Coleman and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

ALLEN ABRAHAM LEBEDUN 

 OPINION BY 

v. Record No. 0250-97-4 JUDGE SAM W. COLEMAN III 

 JULY 7, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Marcus D. Williams, Judge 

 Crystal A. Meleen, Senior Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Allen Abraham Lebedun appeals his jury trial convictions for 

abduction, robbery, and use of a firearm in the commission of 

robbery. Lebedun contends the convictions should be reversed 

because (1) the search warrant was not supported by probable 

cause and failed to recite the offense for which the search was 

being conducted; (2) the general district court erred in refusing 

to grant a continuance in order to obtain a court reporter for 

the preliminary hearing; (3) the circuit court judge erred by sua

sponte noting the failure of the Commonwealth's evidence to make 

an in-court identification of the defendant and by allowing the 

Commonwealth to reopen its evidence to prove the defendant's 

identity; (4) the circuit court erred by refusing to instruct the 

jury that Virginia has abolished parole eligibility in 
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non-capital cases; (5) the Commonwealth failed to comply with the 

statutory notice and copy requirements for introducing prior 

convictions evidence at sentencing; and (6) the evidence is 

insufficient to support the robbery conviction. For the reasons 

that follow, we affirm the convictions. 

I. BACKGROUND

 Two men wearing masks, wigs, and gloves entered the Medicine 

Chest Pharmacy in Fairfax County. The taller of the two men went 

to the pharmacy counter, pointed a firearm at Norman Friedlander, 

the store manager, and Raza Alborz, the pharmacy technician, and 

announced that "it was a hold up" and "no one would get hurt if 

[they didn't] do anything silly." He ordered Alborz and 

Friedlander to step away from the pharmacy counter. As 

Friedlander complied, he noticed that the shorter assailant was 

holding a knife on Jerry Danoff, the pharmacist, and Patrice 

Lyons, a customer. 

 Upon learning that Danoff was the pharmacist, the gunman 

approached Danoff and demanded methadone. Danoff opened the 

narcotics cabinet and the gunman "started grabbing and filling up 

[bags]" with packets of narcotics. The gunman then ordered 

Danoff to lie on the floor and attempted to bind his feet and 

hands with tape. As Danoff lay on the floor, he heard someone 

open the cash register. During this time, the shorter assailant, 

who had been holding a knife on Friedlander, Alborz, Lyons, and 

customer Helen Gray, ordered them into a storage room, where he 
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bound them with tape. 

 Upon hearing the assailants leave the store, the victims 

freed themselves. Alborz ran outside and observed the assailants 

entering an automobile. Alborz saw the shorter, knife-wielding 

assailant remove his mask. Alborz later identified the unmasked 

assailant from a photo line-up as Worth Myers. 

 After the robbery, Friedlander determined that narcotics and 

a small amount of cash were missing from the drug cabinet. 

Danoff testified that the cash register was "completely empty, 

missing approximately $400 that was in the register earlier that 

day." Although appellant was charged with having robbed 

Friedlander, appellant notes that Friedlander was in the storage 

area when the robbers took the drugs and money and no money or 

property was taken from him personally. 

 Approximately two weeks after the robbery, Fairfax County 

Police Detective James Agnew executed a search warrant for Worth 

Myers' home. In Myers' bedroom, Agnew found pieces of tape 

similar to a ball of tape that he had found behind the pharmacy 

counter and similar to a roll of tape found in the pharmacy 

parking lot after the robbery. Agnew also found two Halloween 

masks. Alborz testified that he recognized both masks as having 

been worn by the robbers. Friedlander and Lyons testified that 

they recognized one of the masks as having been worn by the tall 

gunman. 

 While Agnew searched Myers' home, Fairfax County Police 
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Detective Jack Kirk executed a search warrant at Lebedun's 

apartment. Kirk recovered several bags of prescription drugs, a 

gun, ammunition, and gloves from Lebedun's bedroom. Kirk 

testified that one bottle of pills was labeled with a Medicine 

Chest price sticker. Friedlander testified that some of the 

drugs recovered from Lebedun's home were the same type as those 

taken by the robbers. Friedlander, Lyons, and Alborz positively 

identified the gun found in Lebedun's bedroom as the gun used by 

the taller assailant. 

 Robert Russell, an acquaintance of Lebedun, testified that 

during the three months preceding the robbery Lebedun asked 

Russell to get him a gun. Russell recounted that Lebedun said he 

and Myers had "something staked out." Lauran Ipsan, another 

acquaintance, testified that on the day of or the day after the 

robbery Lebedun said he and Myers had "done a robbery," that 

Myers had taken off his mask, and that one of the pharmacy 

employees had seen Myers. 

 Lebedun was indicted and convicted for robbery of 

Friedlander, use of a firearm in the commission of robbing 

Friedlander, and abducting Lyons and Gray. 

II. THE SEARCH WARRANT

A. Probable Cause

 The Fourth Amendment provides that a search warrant shall 

issue only upon a showing of probable cause supported by oath or 

affirmation. See Gwynn v. Commonwealth, 16 Va. App. 972, 974, 
- 5 - 

434 S.E.2d 901, 903 (1993). Whether probable cause exists to 

support the issuance of a warrant is to be determined from the 

"totality of the circumstances" that are presented to the 

magistrate. Illinois v. Gates, 462 U.S. 213, 238 (1983). 

 The task of the issuing magistrate is simply 

to make a "practical, common-sense decision 

whether, given all the circumstances set 

forth in the affidavit before him, including 

the veracity and the basis of knowledge of 

persons supplying hearsay information, there 

is a fair probability that contraband or 

evidence of a crime will be found in a 

particular place." And the duty of a 

reviewing court is simply to ensure that the 

magistrate had a "substantial basis for . . . 

concluding" that probable cause existed. 

* * * * * * * 

 [A]n after-the-fact review of a magistrate's 

decision should not be made de novo[,] . . . 

great deference should be given to the 

magistrate's finding of probable cause. 

Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 

(1991) (quoting Gates, 462 U.S. at 238). 

 In the present case, Detective Agnew's affidavit in support 

of his request for a warrant to search Lebedun's home stated that 

a fatal drug overdose had occurred at Myers' apartment, that an 

informant had purchased prescription drugs from Myers, and that 

Worth Myers had told the informant how he and Lebedun, while 

wearing masks, committed a series of armed robberies of 

pharmacies in Maryland and Virginia. The affidavit further 

stated that the informant had on other occasions provided the 

police with information regarding controlled drug purchases and 
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had been found to be reliable. The affidavit also stated that a 

victim of one robbery could identify Myers as one of the robbers 

after having observed Myers when he removed his mask as he left 

the scene. The affidavit further stated that "Myers gave 

statements [after his arrest] as to his involvement in the armed 

robberies of several pharmacies in Maryland and Virginia, against 

his penal interest. In his statement [Myers] implicated one 

Allen Lebedun as the second subject in the robberies." 

Accordingly, the magistrate issued a warrant to search Lebedun's 

apartment. 

 Lebedun contends the magistrate lacked probable cause to issue 

the search warrant because the magistrate's decision was based 

solely upon the unreliable assertions made by Worth Myers. 

Lebedun reasons that Myers' assertions were unreliable because he 

admitted to using and distributing drugs. We find no merit in 

the argument. The reliability of hearsay statements in an 

affidavit "may be established by showing that . . . the 

[declarant] has made a declaration against his penal interest."1

 1Even before the Supreme Court departed from the more rigid 

Aguillar-Spinelli approach in favor of the "totality of the 

circumstances" test announced in Gates, the Virginia Supreme 

Court had held in Manley v. Commonwealth, 211 Va. 146, 150-51, 

176 S.E.2d 309, 313 (1970): 

 

 Reliability may be found in an informant's 

statement of facts as an "eyewitness." In 

People v. Montague, . . . the reliability 

standard was said to have been met where the 

affidavit in sufficient detail established 

that the informer was speaking with personal 

knowledge and relating his own participation 

with that of the suspects in their illegal 
- 7 - 

Polston v. Commonwealth, 24 Va. App. 738, 745, 485 S.E.2d 632, 

634 (1997), aff'd on other grounds, ___ Va. ___, 498 S.E.2d 924 

(1998). Myers' admission that he and Lebedun committed the 

robberies was a statement against his penal interest and, as 

such, constituted reliable information upon which the magistrate 

could find probable cause to issue a warrant. Based on the 

totality of circumstances presented in the affidavit, the 

magistrate had a "substantial basis for concluding" that Lebedun 

committed the robberies with Myers and that evidence relating to 

the robberies could be found at Lebedun's home. Accordingly, 

issuance of the search warrant was supported by probable cause. 

(..continued) 

activities. In the concurring opinion of Mr. 

Justice White in Spinelli, it is said: 

 But if for example, the informer's 

hearsay comes from one of the 

actors in the crime in the nature 

of an admission against interest, 

the affidavit giving this 

information should be held 

sufficient. 

 Here, the affidavit established that the 

informant was stating facts based on his own 

personal knowledge and was relating his 

participation in defendant's illegal 

activity. His statements were admissions 

against interest. These facts certainly show 

a substantial basis for the officer-affiant 

to state that the informant was reliable and 

for a neutral and detached magistrate to 

conclude that the informant's information was 

reliable and that probable cause existed for 

the issuance of the warrant. 

211 Va. at 150-51, 176 S.E.2d at 313 (citations omitted). 
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 B. Recitation of Offense Pertaining to Search Warrant

 Both the Fourth Amendment and Code § 19.2-56 require that a 

search warrant "recite the offense in relation to which the 

search is to be made." Code § 19.2-56; Gilluly v. Commonwealth, 

221 Va. 38, 41, 267 S.E.2d 105, 106-07 (1980). The failure of a 

warrant to state the related offense renders the warrant "fatally 

defective" and the evidence seized in the execution of the 

warrant inadmissible. Id.

 Code § 19.2-56 further provides: "The judge, magistrate, or 

other official authorized to issue criminal warrants shall attach 

a copy of the affidavit required by Code § 19.2-54, which shall 

become part of the search warrant and served therewith." 

(Emphasis added). Although a search warrant should recite on its 

face the offense being investigated, an attached affidavit which 

recites the offense provides the necessary notice because the 

affidavit "become[s] part of the search warrant." A search 

warrant sufficiently "recites the offense" if the affidavit 

attached to it specifies the offense to which the warrant 

pertains. However, a search warrant does not recite the offense 

and is "fatally defective," where "the evidence below 

establishe[s] conclusively that [the facially deficient warrant 

and the affidavit that did recite the offense] were not attached 

until after the search warrant had been executed and the disputed 

items seized." Gilluly, 221 Va. at 41, 267 S.E.2d at 107 (first 

emphasis added). 
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 Relying on Gilluly, Lebedun contends the evidence fails to 

show that the deficient warrant and affidavit were attached or 

that they were attached when the search occurred. Without 

dispute, the warrant failed to recite the offense, but the 

affidavit expressly stated that the search pertained to charges 

of robbery and abduction. Thus, a critical fact is whether the 

warrant and affidavit were attached when the warrant was 

executed. 

 At the suppression hearing, Detective Kirk testified 

regarding his execution of the search warrant: 

 COMMONWEALTH'S ATTORNEY: Now, when you state 

that you executed [the search warrant], tell 

His Honor what you did. 

 DETECTIVE KIRK: I noted the time that we 

made entry into the house. I executed the 

warrant by signing my name to it where it 

says, execution. At the end of our 

investigation at the residence I left a copy 

of the warrant on the table in the dining 

room/kitchen area of the residence. 

 COMMONWEALTH'S ATTORNEY: Now, when you say a 

copy of the warrant . . . [you mean] not only 

of the search warrant itself, but the 

affidavit. 

 DETECTIVE KIRK: Yes, sir. 

 COMMONWEALTH'S ATTORNEY: Now, did you leave 

both of those items at [Lebedun's residence]? 

 DETECTIVE KIRK: Yes, sir, we always do. We 

always leave the affidavit with the copies of 

the search warrant itself. 

* * * * * * * 
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 COMMONWEALTH'S ATTORNEY: What was the status 

[of the search warrant and accompanying 

affidavit] when you left those at the 

apartment? 

 DETECTIVE KIRK: They were paper clipped 

together. 

 COMMONWEALTH'S ATTORNEY: Paper clipped? 

 DETECTIVE KIRK: Yes; we paper clip them 

together and leave a copy at the scene. 

* * * * * * * 

 COMMONWEALTH'S ATTORNEY: Was there anybody 

present besides police officers when you left 

those items . . . in that apartment? 

 DETECTIVE KIRK: There was no one present 

inside the house at the time. 

 On cross-examination, Detective Kirk explained: 

 DEFENSE COUNSEL: Were [the search warrant 

and the affidavit] ever stapled together or 

in any way permanently attached to one 

another? 

 DETECTIVE KIRK: They were paper clipped 

together. 

 The evidence did not expressly prove whether the search 

warrant and affidavit were attached or "paper clipped together" 

at the time the search warrant was executed. Thus, the 

dispositive issue is whether on the motion to suppress the 

Commonwealth had the burden of proving that the affidavit was 

attached or the defendant had the burden of proving that it was 

not. We find no Virginia case allocating the burden of proof 

when the defendant moves to suppress evidence that was seized 

pursuant to a search warrant. 

 With respect to . . . the reasonableness of 
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the challenged search or seizure . . . most 

states follow the rule which is utilized in 

the federal courts: if the search or seizure 

was pursuant to a warrant, the defendant has 

the burden of proof; but if the police acted 

without a warrant the burden of proof is on 

the prosecution. 

4 Wayne R. LaFave, Search and Seizure § 11.2(b) at 218 (2d ed. 

1987) (emphasis added). See, e.g., United States v. Cahree, 27 

F.3d 1493, 1496 (10th Cir. 1994); United States v. Roch, 5 F.3d 

894, 897 (5th Cir. 1993); United States v. Longmire, 761 F.2d 

411, 417 (7th Cir. 1985); State v. Slaughter, 315 S.E.2d 865 (Ga. 

1984); State v. Brown, 333 A.2d 264, 267 (N.J. Super. Ct. App. 

1975); Malcolm v. United States, 332 A.2d 917, 918 (D.C. App. 

1975); State v. Wilcutt, 526 P.2d 607, 608-09 (Or. App. 1974); 

Morales v. State, 170 N.W.2d 684, 687 (Wis. 1969). Because 

search warrants are favored, and warrantless searches are 

presumptively invalid under the Fourth Amendment, see

Commonwealth v. Ealy, 12 Va. App. 744, 751-52, 407 S.E.2d 681, 

686 (1991), we find the warrant/no warrant dichotomy to be a 

logical basis for allocating the burden of proof when ruling on 

motions to suppress. Thus, the government bears the burden to 

justify a warrantless search as an exception to the warrant 

requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 

(1971). However, a presumption of validity attaches when a 

search is conducted pursuant to a warrant issued by a neutral and 

detached magistrate or judicial officer. See Brown, 333 A.2d at 

267; Malcolm, 332 A.2d at 918. Therefore, where the police 
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conduct a search pursuant to a judicially sanctioned warrant, the 

defendant must rebut the presumption of validity by proving that 

the warrant is illegal or invalid. See id.; Wilcutt, 526 P.2d at 

608-09; see also Longmire, 761 F.2d at 417. We adopt the 

well-reasoned rule applied by the federal courts and the majority 

of our sister states. 

 Here, because the evidence was seized pursuant to a 

judicially issued search warrant, Lebedun had the burden of 

proving that the search warrant was invalid. In order to prove 

that the warrant was invalid and thereby necessitated suppression 

of the evidence, Lebedun had the burden of proving that the 

warrant and the affidavit were not attached when the warrant was 

executed. As noted, Lebedun failed to meet this burden. After 

Detective Kirk testified that the search warrant and affidavit 

were attached when he "left the apartment," Lebedun did not 

establish whether they were attached before or after the warrant 

was executed. Lebedun had the opportunity to elicit this 

information during Detective Kirk's cross-examination but 

declined to do so. We hold that Lebedun failed to meet his 

burden of proving that the warrant did not recite the offense in 

relation to which the search was conducted. Therefore, the trial 

court did not err in denying Lebedun's motion to suppress the 

seized evidence. 

III. GENERAL DISTRICT COURT'S DENIAL OF MOTION FOR A CONTINUANCE

 The circuit court granted Lebedun's in forma pauperis motion 
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to provide a court reporter to record and transcribe the 

testimony at the preliminary hearing. However, the court 

reporter did not appear at the preliminary hearing. After 

advising the general district court judge that a court reporter 

had been authorized to transcribe the hearing and was not 

present, Lebedun made a motion for a continuance of the 

preliminary hearing. Apparently, no effort was made to obtain 

the services of another court reporter. The Commonwealth 

objected to a continuance, noting that seven witnesses were 

present and prepared to testify. The general district court 

denied the motion for continuance. Lebedun's counsel tape 

recorded the preliminary hearing, but, according to Lebedun, 

several portions of the witnesses' testimony were inaudible or 

incomplete. On appeal, Lebedun asks us to dismiss the indictment 

and remand the case to the general district court for a 

preliminary hearing with a court reporter. 

 "The decision whether to grant a continuance is a matter 

within the sound discretion of the trial court." Lowery v. 

Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 509 (1990). 

The Virginia Supreme Court has established a two-pronged test for 

determining whether a trial court's denial of a continuance 

request is reversible error. Under this test, we may reverse a 

trial court's denial of a motion for a continuance only if it 

appears from the record: (1) that the court abused its 

discretion and (2) that the movant was prejudiced by the court's 
- 14 - 

decision. See Cardwell v. Commonwealth, 248 Va. 501, 509, 450 

S.E.2d 146, 151 (1994). 

 The function of a preliminary hearing is to determine before 

a judicial officer whether probable cause exists to believe that 

an accused may have committed a criminal offense and whether 

reason exists for a grand jury to investigate the charges. See

Webb v. Commonwealth, 204 Va. 24, 31, 129 S.E.2d 22, 38 (1963). 

A preliminary hearing is not a vehicle for an accused to conduct 

discovery. See Williams v. Commonwealth, 208 Va. 724, 729, 160 

S.E.2d 781, 784 (1968). 

 Although a preliminary hearing is not constitutionally 

mandated, an accused who has been arrested on a felony warrant is 

statutorily entitled to a preliminary hearing. See Code 

§ 19.2-218. Because a transcript of the preliminary hearing may 

be an effective tool for cross-examining and impeaching witnesses 

at trial, see Harley v. Commonwealth, 25 Va. App. 342, 348-50, 

488 S.E.2d 647, 649-50 (1997), the circuit court authorized 

Lebedun to employ a court reporter. See Roberts v. LaVallee, 389 

U.S. 40, 42-43 (1967) (per curiam); Code § 19.2-185. However, 

the responsibility for employing the court reporter and having 

the court reporter present rested with Lebedun. Lebedun did not 

have a court reporter present for the scheduled preliminary 

hearing and offered no justification other than that the court 

reporter had not appeared. Lebedun could not determine when a 

court reporter would be available or whether one could be 
- 15 - 

available that day. 

 Here, the general district court did not abuse its 

discretion in denying the motion for a continuance. The 

Commonwealth had committed to provide Lebedun a court reporter. 

As with a non-indigent defendant, the court must determine 

whether a party has shown good cause for not having a court 

reporter present for a scheduled preliminary hearing. In ruling 

upon a motion for a continuance, a court may properly consider 

the convenience of the witnesses who are prepared to testify at 

the scheduled proceeding. See Ex Parte Windham, 634 S.W.2d 718, 

720-21 (Tex. Crim. App. 1982); Phifer v. State, 218 N.W.2d 354, 

356-58 (Wis. 1974). The Commonwealth had seven witnesses present 

to testify at the preliminary hearing, several of whom had been 

subpoenaed to appear. Because the appellant could not determine 

that a court reporter could be available that day, the witnesses 

would likely have been required to reappear to testify on another 

date. The appellant did not give a justifiable reason why he did 

not have a court reporter present. 

 Furthermore, Lebedun has not demonstrated that the lack of a 

transcript of the preliminary hearing denied him the opportunity 

to assess the strength of the Commonwealth's case or was 

essential for him to impeach the witnesses at trial. See Edwards 

v. Commonwealth, 19 Va. App. 568, 572, 454 S.E.2d 1, 3 (1995). 

Lebedun was allowed to tape record the testimony of the witnesses 

at the preliminary hearing and could have taken notes of the 
- 16 - 

proceedings. See Code § 16.1-69.35:2. After the circuit court 

authorized Lebedun to employ a court reporter, the responsibility 

for employing a reporter and having the reporter present rested 

with the appellant. Although Lebedun may have been 

inconvenienced by the lack of a transcript, he has not shown that 

he was prejudiced by not having a transcript of the preliminary 

hearing. See Bird v. Peyton, 287 F. Supp. 860, 862-63 (W.D. Va. 

1968). We find that, under the circumstances, the general 

district court's denial of the motion for a continuance was not 

an abuse of discretion. Accordingly, we decline to dismiss the 

indictment and remand the case to the general district court for 

a preliminary hearing. 

 IV. REOPENING OF THE COMMONWEALTH'S CASE

 Lebedun made a motion to strike the evidence on the ground 

the Commonwealth failed to prove the requisite elements of 

robbery. After discussing and denying Lebedun's motion, the 

trial court inquired: "[B]efore we proceed[,] where is the 

identification of the defendant as the person who did this, in 

Court identification?" The court further stated: 

 I believe you got to make an in Court -- 

you still got to link the name -- you've got 

a name in evidence, but you've got to say 

this is the person is -- I mean you could do 

it through the witnesses who know him. They 

can say that's Mr. Lebedun. 

 It doesn't have to be the people at the 

robbery, but I think you got to have somebody 

to say this is the person. 

The court then permitted the Commonwealth, over Lebedun's 
- 17 - 

objection, to reopen its case to make an in-court identification 

of Lebedun. Lebedun contends the court erred in permitting the 

Commonwealth to reopen its case and in raising the issue sua

sponte. 

 "[T]he order of proof is a matter within the sound 

discretion of the trial court and [an appellate] court will not 

reverse the judgment except in very exceptional cases, and, 

unless it affirmatively appears from the record that this 

discretion has been abused, [an appellate] court will not disturb 

the trial court's ruling." Hargraves v. Commonwealth, 219 Va. 

604, 608, 248 S.E.2d 814, 817 (1978). 

Hargraves is controlling on this issue. In that case, after 

the Commonwealth presented its case, the defendant made a motion 

to strike the evidence on the ground that he had not been 

identified as the perpetrator. Id. at 606, 248 S.E.2d at 816. 

"After expressing doubt as to the sufficiency of the 

Commonwealth's evidence," the trial court permitted the 

Commonwealth to reopen in order to present a witness who 

identified the defendant as the perpetrator. Id. at 607, 248 

S.E.2d at 816. The Virginia Supreme Court held that the trial 

court had broad discretion to control the order of evidence 

before it and did not abuse its discretion in permitting the 

Commonwealth to reopen its case to present additional evidence. 

Id. at 608, 248 S.E.2d at 817. Here, as in Hargraves, the trial 

court did not abuse its discretion by allowing the Commonwealth 
- 18 - 

to reopen its case to make an in-court identification of Lebedun. 

 Moreover, contrary to Lebedun's assertion, the trial judge did 

not transgress his role as an impartial arbiter by commenting sua

sponte upon the identification issue. See Students of Calif. 

School for the Blind v. Honig, 736 F.2d 538, 548-49 (9th Cir. 

1984), vacated on other grounds, 471 U.S. 148 (1985). Although 

the trial judge is a neutral and impartial arbiter and should not 

abandon that role by becoming an advocate, the trial judge is not 

required to sit idly and observe a miscarriage of justice occur 

because one party inadvertently overlooks establishing a routine 

element of proof. The trial court did not abuse its discretion 

by raising the issue or by permitting the Commonwealth to reopen 

its case to identify Lebedun. 
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V. REFUSAL TO INSTRUCT JURY ON THE ABOLITION OF

PAROLE ELIGIBILITY IN NON-CAPITAL CASES

 During deliberations, the jury sent the trial judge a note 

inquiring: "What is the Virginia Parole law, if any?" Over 

Lebedun's objection, the trial judge responded that the jury 

"should not concern [them]selves with . . . these matters." 

Lebedun contends the trial judge erred and should have told the 

jury that he was ineligible for parole under Virginia law. 

 Our disposition of this issue is controlled by Briscoe v. 

Commonwealth, 26 Va. App. 415, 494 S.E.2d 898 (1998). 

Recognizing that courts are not required to instruct the jury on 

a defendant's eligibility for parole in non-capital cases, see

Walker v. Commonwealth, 25 Va. App. 50, 66, 486 S.E.2d 126, 134 

(1997); Mosby v. Commonwealth, 24 Va. App. 284, 286, 482 S.E.2d 

72, 72 (1997), Briscoe held that a trial court does not err by 

refusing to answer a jury's questions regarding parole 

eligibility. 26 Va. App. at 417, 494 S.E.2d at 899. 

Accordingly, the trial judge did not err when he informed the 

jury that it was "not to concern [them]selves" with whether 

Lebedun was eligible for parole. 

VI. NOTICE OF INTENT TO INTRODUCE PRIOR CONVICTIONS

 More than a month before trial, the Commonwealth notified 

Lebedun's counsel that it intended to introduce at sentencing an 

August 2, 1977 Fairfax County conviction for robbery. The 

related order provided by the Commonwealth showed the date of 

conviction to be August 27, 1976. The Commonwealth also gave 
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notice of its intention to introduce evidence of four convictions 

in Montgomery County, Maryland in January 1977, which included 

two convictions for robbery and two convictions for use of a 

firearm in the commission of a felony. The Maryland records 

provided by the Commonwealth to Lebedun's counsel indicated that 

on appeal the 1977 convictions were reversed and remanded and 

that Lebedun was retried and convicted on the same charges in 

1979. 

 Code § 19.2-295.1 requires that at the sentencing phase of a 

bifurcated trial the Commonwealth provide notice of its intention 

to introduce evidence of the defendant's prior convictions. The 

notice shall include "the date of each prior conviction." Code 

§ 19.2-295.1. The statute further provides that "[p]rior to the 

commencement of the trial, the Commonwealth shall provide to the 

defendant photocopies of certified copies of the defendant's 

prior criminal convictions which it intends to introduce at 

sentencing." Id. 

 Lebedun argues that the trial court erred by permitting the 

Commonwealth to introduce the prior conviction orders at 

sentencing because the Commonwealth erroneously stated the dates 

of the respective convictions in its notice to defense counsel. 

Thus, he contends, because the Commonwealth failed to strictly 

comply with the notice provisions of Code § 19.2-295.1, the case 

must be remanded for resentencing. We disagree. 

 Code § 19.2-295.1 is "procedural in nature" and "does not 
- 21 - 

convey a substantive right." Riley v. Commonwealth, 21 Va. App. 

330, 337-38, 464 S.E.2d 636, 638-39 (1994). As such, the 

statute's notice provisions are merely directory, and "precise 

compliance [was] not . . . essential to the validity of the 

proceedings. . . ." Commonwealth v. Rafferty, 241 Va. 319, 324, 

402 S.E.2d 17, 20 (1991) (citation omitted). The purpose of the 

notice provisions of Code § 19.2-295.1 is to provide defense 

counsel with the opportunity to know in advance what convictions 

the Commonwealth intends to introduce and to investigate their 

validity. Although the Commonwealth's notices incorrectly stated 

the dates of the actual convictions, the Fairfax County 

conviction order and the Maryland documentation apprised Lebedun 

of the convictions that would be proven and the correct 

conviction dates. Lebedun does not contend that the convictions 

never occurred or that he could not ascertain whether the 

conviction record was accurate. The Commonwealth's failure to 

strictly comply with the procedural requirements of Code 

§ 19.2-295.1 violated no substantive right and did not prejudice 

Lebedun's ability to contest the validity of the convictions. 

Therefore, the trial court did not err in admitting proof of the 

prior convictions. 

VII. SUFFICIENCY OF THE EVIDENCE - ROBBERY

 Lebedun next contends the evidence is insufficient to 

support the robbery conviction. Upon familiar principles of 

appellate review, we will not disturb the jury's verdict unless 
- 22 - 

it is plainly wrong or without evidence to support it. Traverso 

v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

 When the sufficiency of the evidence is challenged on appeal, we 

must determine whether the evidence, viewed in the light most 

favorable to the Commonwealth, and granting to it all reasonable 

inferences fairly deducible therefrom, supports each and every 

element of the charged offense. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 

 Robbery is "the taking, with intent to steal, of the 

personal property of another, from his person or in his presence, 

against his will, by violence or intimidation." Pierce v. 

Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31 (1964). When 

one takes property "from the presence of a person whose right to 

possession is superior to that of the [robber], the robbery is 

complete." Clay v. Commonwealth, 13 Va. App. 617, 619, 414 

S.E.2d 432, 433 (1992). 

 Here, the indictment alleged that Lebedun robbed 

Friedlander. The Commonwealth did not charge that Lebedun robbed 

any other pharmacy employee. Lebedun contends that because 

Friedlander was sequestered in the storage room before Lebedun 

took any of the drugs or money the evidence failed to prove that 

he took property "from [Friedlander's] person or in 

[Friedlander's] presence."2 The argument is without merit. 

 

 2Appellant does not contend the evidence is insufficient to 

identify him as one of the perpetrators of the robbery. Instead, 

he argues that, at most, the evidence proved that he robbed 

Danoff and not Friedlander, as the indictment alleged. 
- 23 - 

 "The phrase 'of the personal property of another, from his 

person or in his presence' has been broadly construed to include 

the taking of property from the custody or . . . the constructive 

possession of another." Bunch v. Commonwealth, 225 Va. 423, 440, 

304 S.E.2d 271, 280 (1983). As the store manager, Friedlander 

was the custodian of the pharmacy's drugs and money, was in 

constructive possession of those items, and clearly had a right 

to possession of the property superior to that of Lebedun. See

Sullivan v. Commonwealth, 16 Va. App. 844, 848, 433 S.E.2d 508, 

510-11 (1993). The evidence proved that Lebedun and Myers 

threatened Friedlander with dangerous weapons, forced him away 

from the pharmacy counter and into a storage room, and took drugs 

and money from the narcotics cabinet and cash register behind the 

counter. These facts sufficiently established that Lebedun took 

the property from Friedlander's custody. See Bunch, 225 Va. at 

440, 304 S.E.2d at 280 (property taken from victim's custody 

where defendant brutally beat victim in her home and alleged to 

have taken property from another part of residence); see also

Person v. Commonwealth, 10 Va. App. 36, 40, 389 S.E.2d 907, 910 

(1990) (property taken from victim's presence where victim 

forcibly transported from her car to another car and held down by 

one assailant while other assailant entered victim's car and took 

money from glove compartment). Accordingly, the evidence is 

sufficient to support the robbery conviction. 

 For these reasons, we affirm the convictions. 
- 24 - 

 Affirmed.