No. 1161 October Term, 1977, Appeal from the Judgment of Sentence imposed by the Court of Common Pleas of Delaware County, Criminal Division, at Nos. 1129 A-C, May Session 1975.
William H. Wolf, Philadelphia, for appellant.
D. Michael Emuryan, Assistant District Attorney, Media, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone and Spaeth, JJ., concur in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 263 Pa. Super. Page 240]
Following a jury trial commenced on October 14, 1975, appellant was convicted of involuntary deviate sexual intercourse*fn1 and corruption of a minor.*fn2 Post-verdict motions were denied, and appellant was sentenced to a prison term of from three to six years and ordered to pay the costs of prosecution. Appellant now alleges several instances of error on the part of the court below, as well as the ineffectiveness of trial counsel. Finding these contentions to be without merit, we affirm the judgment of sentence.
The facts pertinent to our decision are as follows. On March 25, 1975, appellant and fifteen year old Richard Dormer were working out at Ryan's Gymnasium in Glenolden, Delaware County. Because appellant was wearing a suit emblazoned with "Gold's Gym", a nationally recognized body building gym in Los Angeles, Dormer and his companions engaged him in conversation concerning training techniques. Appellant offered some pieces of advice, then inquired of Dormer and a friend, John Henry, if they would be interested in earning $10,000 for acting in a proposed movie to be made in Philadelphia. Henry's father, present in the gym, rejected the idea, but appellant and Dormer continued the conversation in the parking lot. At that time, appellant indicated to Dormer that there would be some homosexuality in the film, although Dormer himself would not be involved. If Dormer were interested, however, he would have to pass a reading test to be conducted in appellant's hotel near Media.
[ 263 Pa. Super. Page 241]
Dormer testified that following a brief drive to the hotel, appellant directed him to undress and recite from an article in the magazine "Psychology Today." Shortly thereafter, appellant orally stimulated Dormer with the aid of a vibrator. Subsequently, Dormer accepted an offer of an additional $5,000*fn3 made by appellant to sodomize him. In contrast, appellant contended that the two had merely talked and nothing of a sexual nature had transpired. The jury chose to believe Dormer's account.
Appellant first argues that the lower court erred in (1) excluding the proffered testimony of five females who would have testified to numerous heterosexual encounters with appellant; and (2) permitting the district attorney to argue in closing that a photograph of appellant's abdomen unnaturally highlighted a scar on that part of the body. We do not reach the merits of these arguments because we find both to have been waived. Neither were raised in post-verdict motions as is mandated by Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), and are thus not properly preserved for appellate review. See also Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978); Commonwealth v. May, 466 Pa. 524, 353 A.2d 815 (1976); Commonwealth v. Gardner, 246 Pa. Super. 582, 371 A.2d 986 (1977). While strict adherence to the Blair mandate has been modified to allow review when an issue is not included in post-verdict motions, but briefed and addressed by the court below, Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977), and Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978), this 'savings clause' is here not available to appellant. Further, it is of no import that appellant's present counsel was not so engaged at the time of trial or post-verdict motions.*fn4
[ 263 Pa. Super. Page 242]
Appellant next contends that he was denied effective assistance of counsel when his trial counsel failed to object and/or move for a mistrial in response to the testimony of a Commonwealth witness concerning appellant's post-arrest silence following reception of his Miranda rights. The comment in question was made during the ...