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decided: February 15, 1979.



Ross E. Cardas, Mercer, for appellant.

Charles W. Johns, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Cercone, Wieand and Hoffman, JJ. Cercone, P. J., concurs in the result.

Author: Wieand

[ 263 Pa. Super. Page 287]

Appellant contends that the trial court erred in denying his PCHA petition following a hearing. He alleges (1) that his trial counsel was ineffective for failing to move to suppress identification testimony given by three Commonwealth witnesses; and (2) that his conviction for aggravated assault and battery*fn1 had merged in the conviction for robbery

[ 263 Pa. Super. Page 288]

    by violence,*fn2 and the two convictions, even though petitioner had been sentenced on the robbery conviction alone, constituted a violation of the double jeopardy provisions of the United States and Pennsylvania Constitutions. Because the first issue lacks merit and the second issue has been waived, we will affirm the order denying relief.

Charges of robbery and aggravated assault and battery were contained in complaints filed against the appellant, Gary Lee Klaric, on September 11, 1972. The trial court found as a fact that between his arrest the same day and the preliminary hearing on November 11, 1972, there had been no confrontation between appellant and Commonwealth witnesses. In order to prevent such a confrontation prior to the preliminary hearing, defense counsel arranged to transport appellant to the preliminary hearing in counsel's vehicle. Counsel's efforts were successful. Upon arrival at the hearing, counsel arranged for appellant to be seated in the first row of the hearing beside his brother. A pre-hearing motion for a lineup was made but denied by the magistrate. A motion to sequester the Commonwealth's witnesses, however, was granted. Despite sequestration of witnesses and despite the hearing room lineup arranged by defense counsel, the Commonwealth's witnesses unhesitatingly picked out and identified appellant as the robber. Mary McCann, the brutally beaten victim, David Warner, a passerby, and Edward Patrick, a tavern owner who was acquainted with appellant,*fn3 gave identification testimony that was positive and unequivocal.

Thereafter, appellant's trial counsel, although he filed a pre-trial suppression motion, did not seek to suppress the Commonwealth's identification testimony. At trial, the witnesses again identified appellant positively as the robber. Despite counsel's vigorous cross-examination of the Commonwealth's witnesses, they were not shaken. Their testimony

[ 263 Pa. Super. Page 289]

    was accepted by the jury, and appellant was convicted.*fn4

Appellant's averment of ineffectiveness of counsel is based on hindsight. He charges that his trial counsel should have requested another pre-trial lineup after the case had been returned to court. In the alternative, he suggests that counsel should have moved to suppress in-court identification testimony because of the magistrate's denial of his pre-trial request for a lineup. In making this charge he relies on the opinion of this Court in Commonwealth v. Sexton, 246 Pa. Super. 30, 369 A.2d 794 (1977), which held a denial of a request for a pre-trial lineup under the circumstances of that case to be an abuse of discretion. Not only did appellant's trial counsel not have the benefit of the Sexton decision in 1972, but the facts in that case are vastly different than those of the instant case. Specifically, the denial of a request for a pre-trial lineup in Sexton was held to be an abuse of discretion because of a one-on-one confrontation occurring at a hearing to certify the accused, a juvenile, for trial as an adult. In the instant case, there was never a one-on-one confrontation between appellant and identification witnesses. Not only did appellant sit among the spectators at his preliminary hearing but his counsel also directed him to sit beside his brother. By this means counsel was himself able to create a lineup to test the accuracy and credibility of the witness' identification testimony.

The often repeated test for determining ineffective assistance of counsel claims appears in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, ...

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