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COMMONWEALTH PENNSYLVANIA v. RUTHERFORD GAY (08/17/79)

filed: August 17, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
RUTHERFORD GAY, APPELLANT



No. 2350 October Term, 1977, Appeal from the Judgment in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Information No. 1267, April Session, 1977.

COUNSEL

Kenneth D. Freeman, Philadelphia, for appellant.

Donna Loeb, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 269 Pa. Super. Page 166]

After a non-jury trial on June 23, 1977, appellant was found guilty of burglary.*fn1 He failed to file post-verdict motions and on August 23, 1977, was sentenced to a term of imprisonment of from three to ten years. Two days later, on August 25, 1977, appellant filed an appeal to this court. The court below requested trial counsel to submit a statement of matters complained of on appeal, see Pa.R.A.P. 1925(b), but counsel failed to file the statement. The court held, therefore, that all issues had been waived, and the only possible issue on appeal would be the alleged ineffectiveness of trial counsel. The court then conducted a general review of the record and concluded that trial counsel had not acted ineffectively, although no specific issues were discussed.

[ 269 Pa. Super. Page 167]

On appeal, appellant contends that trial counsel was ineffective in three respects: (1) for failing to file post-trial motions; (2) for failing to object to the alleged opinion testimony by one of the arresting officers; and (3) for failing to file a motion to dismiss the charges pursuant to Pa.R.Crim.P. 1100(a)(2). Appellant also claims that the evidence was insufficient to support the verdict. This final issue was, however, not incorporated with a claim of ineffectiveness of counsel, and because it was not preserved in the court below, it has been waived. See, e. g., Commonwealth Page 167} v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). The other claims have, however, been preserved for appellate review.

Appellant's first argument is that trial counsel was ineffective for failing to file post-trial motions, thus resulting in a waiver of the right to appeal directly all alleged errors. He does not, however, identify any additional errors other than those already incorporated into his ineffectiveness claims. Even assuming a claim of insufficiency of the evidence, which has been waived, our review of the record reveals that counsel was not ineffective for failing to assert this claim. Counsel will not be deemed to be ineffective for failing to pursue meritless claims.

The evidence at trial, as stated in the opinion of the trial court, was as follows:

"Patrolman John J. Miller, the arresting officer, testified that on June 29, 1976, at approximately 12:30 P.M., he and his partner responded to a police radio call indicating there was a burglary in progress at 1627 North 59th Street, Philadelphia. Upon arriving on the scene, they received information from a man in the neighborhood that someone had broken into the dwelling numbered 1627. They entered the premises through the open front door which had pry marks on it made from what appeared to be a small object. They discovered two drawstring-type duffel bags of different colors on the second floor, each containing copper tubing and brass. The dwelling was unoccupied at the time, but in the process of searching for the culprit, the officers discovered that at least some of the tubing appeared to have been ripped from under the kitchen sink. After examining the duffel bags, they secured the premises and returned to their patrol of the area.

"Officer Miller and his partner were again directed by police radio to 1627 North 59th Street at approximately 5:30 P.M. on the same day. Again they found the property vacant, and the front door ajar, but this time ...


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