Dusan Bratic, Philip D. Freedman, Harrisburg, for appellant.
Marion E. MacIntyre, 2nd Asst. Dist. Atty., Harrisburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins.
[ 243 Pa. Super. Page 496]
On January 5, 1973, at approximately 7:00 P.M., appellant and two other men entered an A & P Supermarket in Harrisburg, and, while robbing the place, engaged in a shoot-out with a security guard, one Leonard Middleton. The manager of the store, Gerald Light, was wounded in the right wrist and left leg, and appellant was shot in the chest. Although numerous shots were fired, and at least twenty adults and several children were in the store at the time, no one else was injured. Appellant left the store aided by several of the robbers and went to Polyclinic Hospital where he was treated for the gunshot wound. Pursuant to a phone call from the hospital, Robert Miller of the Harrisburg police visited appellant in the intensive care unit of the hospital, advised appellant of his rights, and questioned him about the robbery. Appellant admitted at that time, and on several subsequent occasions, to participation in the robbery, and stated that a gun found during a search of his car had been carried by him during the robbery. Appellant was tried on October 3-4, 1973, before a judge and jury, was found guilty of aggravated robbery, assault with intent to maim, and unlawful carrying of firearms,
[ 243 Pa. Super. Page 497]
and was sentenced to concurrent prison terms of ten to twenty years, two and one-half to five years, and one and one-half to three years. No post-trial motions were filed. Appeal was taken to our Court from the judgment of sentence, with appellant raising two issues, neither of which merits a reversal.
Appellant first argues that he was not effectively represented by trial counsel, since trial counsel failed to follow up on appellant's pro se motion to suppress the results of an allegedly-illegal pre-trial confrontation. The test for effective assistance of counsel is well established: "[C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). In the case before us, the confrontations complained about involved the police taking several of the people who had been in the A & P at the time of the robbery to the hospital "to see if this was the same person that was in the store." In view of the fact that the prosecution had available, and in fact did call at trial, at least one witness who had not seen appellant in the hospital, and considering that appellant, after proper Miranda warnings, on two separate occasions admitted to a police officer that he had taken part in the robbery in question, appellant's counsel could very well have determined that it would be futile to pursue the suppression issue. Trial counsel is not required to raise issues which are obviously without merit. Commonwealth v. Learn, 233 Pa. Super. 288, 335 A.2d 417 (1975). At trial, appellant took the stand and testified that he was in the store at the time of the robbery but stated that he was there only as a customer. Appellant denied that he had admitted to a police officer that he had participated in the robbery. Appellant's trial counsel could very well have concluded that the best possible
[ 243 Pa. Super. Page 498]
strategy would be to attempt at trial to raise doubt as to whether appellant was actually a participant in the robbery. We find that the course chosen by counsel did have a reasonable basis designed to effectuate appellant's interests.
Appellant's second argument is that the trial judge unconstitutionally based sentence on appellant's refusal to plead guilty. At the time of sentencing, the lower court made the following remarks:
THE COURT: Well Gerald, it's a great shame, but you are going to learn in life that you have a responsibility for your actions, and it is not only your interests that have to be taken into account but it is the interest of the community. This was, as I say, an aggravated crime. As far as I'm concerned, even though it is your first offense I think substantial punishment must be inflicted here. If you had pled guilty, perhaps you were involved, there is no question in my mind, but had you pled guilty it might have shown me the right side of your attitude about this, but you pled not guilty, fought it all the way, and the jury found you guilty, and I'm going to sentence you at this time.
The sentence of the Court is that the defendant pay the cost of prosecution and that he undergo imprisonment in a state institution for a period of not less than ten nor more than twenty years to begin and be computed from ...