No. 752 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division at No. CC 7301601
Carl R. Schiffman, Pittsburgh, for appellant.
Chris G. Copetas, Second Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, Wieand and Hoffman, JJ.
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Appellant was convicted in a jury trial of armed robbery and receiving stolen goods. In this nunc pro tunc direct appeal,*fn1 he contends that his trial counsel was ineffective in
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failing to file a motion to suppress oral statements allegedly made by him to police.*fn2 We find his contention without merit and, accordingly, affirm the judgment of sentence.
When we can determine from the record that a suppression motion, if filed, would have been denied because it lacked merit, we do not declare counsel ineffective for failure to file such a motion. Commonwealth v. Fisher, 243 Pa. Super. 128, 364 A.2d 483 (1976); Commonwealth v. Hill, 231 Pa. Super. 371, 375, 331 A.2d 777, 780 (1974). The instant case is controlled by Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973). Here, as in Robinson, appellant's testimony at trial (1) that he expressed a desire to have counsel present before making an oral statement and (2) that he never made a statement to police is directly refuted by the testimony of two police officers present at appellant's interrogation who stated (1) that appellant was advised of his Miranda rights, (2) that he understood and waived those rights, and (3) that, although he refused to make a written or taped statement, he twice orally confessed to participating in the armed robbery. On the basis of this testimony, we conclude that appellant's trial counsel was not ineffective for not filing a meritless suppression motion. Robinson, supra.
Appellant also contends that the lower court erroneously admitted references to photographs from which the jury could reasonably have inferred that appellant had engaged
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in prior criminal activity. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Because counsel did not raise this claim in post-verdict motions, appellant may not raise it on appeal.*fn3 Pa.R.Crim.P. 1123(a); ...