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filed: November 27, 1979.


No. 1515 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 1776 June Session, 1976.


John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, submitted a brief on behalf of the Commonwealth, appellee.

Price, Spaeth and Watkins, JJ. Spaeth, J., concurs in the result.

Author: Price

[ 272 Pa. Super. Page 202]

Following a jury trial commenced on December 13, 1976, appellant was convicted*fn1 of one count of robbery.*fn2 Post-trial motions were denied by the court of common pleas en banc, and appellant was sentenced to a term of imprisonment of from two and one-half to fifteen years.

The pertinent facts are as follows. During the early morning hours of June 2, 1976, Mr. Harold Smith, a night watchman for the Dodge Steel Foundry in Philadelphia, was accosted by an armed individual who demanded the keys to the premises and, subsequent to their receipt, bound and gagged Mr. Smith. The individual, later identified by Mr. Smith as appellant, proceeded to remove several drums of chemicals from the storage area of the foundry, load them onto a rented U-haul pickup truck, and leave the premises. The police, working on information involving the presence and identification of a U-haul truck near the foundry shortly before a similar robbery staged two weeks prior to the instant episode, traced the rental of that truck to appellant. When the police arrived at appellant's residence, they discovered a U-haul pickup truck parked outside which contained metal drums bearing the name of the Dodge Steel Foundry. Upon being granted access to the residence by Ms. Patricia Harris, a co-tenant, the police discovered appellant, a set of keys to the U-haul truck, and a set of keys to the Dodge Steel Foundry storage room. Appellant was thereupon arrested and charged with the crime for which he stands convicted.

[ 272 Pa. Super. Page 203]

Appellant asserts several errors of the trial court, to-wit, that the court erred: (1) in instructing the jury that it could draw an adverse inference from the failure of appellant to call his common-law wife as a witness on his behalf; (2) by overemphasizing in its instructions to the jury the effect appellant's vital interest in the proceedings could have on the credibility of his testimony; and (3) in refusing to strike for cause two jurors who allegedly had hearing defects. For the reasons set forth herein, we affirm the judgment of sentence.

We find appellant's first argument waived. Appellant contends that Patricia Harris, with whom he was living at the time of the robbery, was his common-law wife, therefore precluding the court from giving a missing witness charge. See Commonwealth v. Moore, 453 Pa. 302, 309 A.2d 569 (1973). The charge stemmed from counsel's assertion, prior to presentation of appellant's case, that Patricia Harris would testify that on the date in question, appellant was at the residence they were sharing. Ms. Harris failed to appear at trial to testify and was deemed "unavailable" by appellant despite the fact that he was in frequent contact with her during his imprisonment, and that she appeared at prior court hearings.*fn3 In addition, the labeling of Ms. Harris' status as "common-law wife" is open to grave doubt in light of the fact that appellant was legally married to Rosa Frye during this time. Regardless of the dubious nature of appellant's contention, we do not reach the merits of the issue because appellant failed to preserve it by including it in his written post-trial motions. See Pa.R.Crim.P. 1123.*fn4 In his written post-trial motions appellant alleged that:

[ 272 Pa. Super. Page 204]

"[t]he Trial Court erroneously charged that the jury might draw a negative inference from the absence of a corroborating witness, in violation of the presumption of innocence to which the defendant was entitled. Further, the court erred in finding this witness available to or exclusively in control of the defense."

Nowhere in his post-trial motions does appellant contend that this instruction was erroneous due to Ms. Harris' alleged status of "common-law wife." Our supreme court has recently re-emphasized the necessity of including every assignment of error in written post-trial ...

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