February 5, 1982
COMMONWEALTH OF PENNSYLVANIA APPELLEE
JOHN BONETSKY, APPELLANT
NO. 1929 OCTOBER TERM, 1979, Appeal from the Judgment of Sentence of the Court of Common pleas of Lehigh County, at No. 90 of 1978.
Before Hester, Cavanaugh And Van Der Voort, JJ.
A jury found appellant guilty of two counts each of robbery, theft, and receiving stolen property, and of one count of conspiracy. After argument and submission of briefs on post-trial motions, one count each of robbery, theft and receiving stolen property was dismissed, and the convictions on the other counts were sustained. The case is before us on direct appeal.
Appellate counsel first argues that the convictions must be reversed because appellant was denied effective representation of counsel at trial. In post-trial motions filed on March 17, 1978, appellant argued that he had received ineffective assistance of counsel for his defense. The vague allegation of ineffective assistance was not sufficient to preserve the issue for appeal. It was appellant's obligation to specify the manner in which trial counsel was ineffective. See Commonwealth v. Pettus, Pa. , 424 A.2d 1332, 1335 (1981). The March 17, 1978 post-trial motions were filed by appellant himself; however, the lower court on March 27, 1978 appointed new counsel to assist appellant with the appeal. Appellant's new counsel filed amended post-trial motions, which were granted in part by the lower court. After the imposition of sentence, appellant hired yet another attorney to present the appeal to our court. The lower court's opinion does not mention ineffective counsel, and there is no other indication that appellant himself or any of appellant's attorneys attempted to advance specific arguments or pursue this issue in any manner in the lower court. The appellate courts will not consider issues which have not first been considered by the lower court.
We find this argument to have been waived.
The second argument raised on appeal is, in effect, that there was insufficient identification evidence to carry the Commonwealth's burden of proof. Specifically, appellant argues that he was identified with some certainty by only one witness, Elaine Savelli, an employee of the jewelry store which was robbed; that her testimony as to appellant's location in the store during the robbery was contradicted by the testimony of a police officer and was impeached to some extent by her testimony at the preliminary hearing and by the notes of her statement made by the arresting officers; and that her testimony was refuted by appellant's testimony. The weight to be given to the testimony of a witness, and the resolution of discrepancies in testimony are functions of the jury. Commonwealth v. Bogan, 482 Pa. 151, 163, 393 A.2d 424 (1978); Commonwealth v. Martin, 481 Pa. 515, 519, 393 A.2d 23 (1978). We agree with the lower court that the Commonwealth sustained its burden, and that the evidence was sufficient to support the jury's verdict.
Finally, appellant argues that the trial judge committed reversible error by refusing to order a mistrial, or at least to give cautionary instructions to the jury following this testimony of appellant during cross-examination:
"Q. Now, when you were handcuffed by the Pennsylvania State Police, did you tell them your name?
A. No, I didn't.
Q. When you were taken to police headquarters, did you tell them your name?
"A. Yes, I did.
Q. Did you tell them your name immediately?
A. No, I didn't."
Counsel moved for a mistrial or at least a cautionary warning. The court did not act upon the motion immediately, since it appeared that the prosecution intended to pursue that line no further. At the close of testimony, the court volunteered to give a cautionary instruction that the jury should disregard the testimony as to the failure of appellant to give his name immediately, but counsel elected not to have this instruction given. We are satisfied that the cross-examination as to appellant's name presented no prejudice sufficient to justify the declaration of a mistrial. Commonwealth v. Roberts, 263 Pa. Superior Ct. 237, 244, 397 A.2d 1187 (1977). Furthermore, we find that the brief examination of appellant as to the circumstances surrounding his identifying himself were not so unfairly incriminating that cautionary instructions were required to protect appellant's constitutional rights. There is no indication that the prosecution improperly exploited the line of inquiry. See Commonwealth v. Ashmore, 266 Pa. Superior Ct. 181, 403 A.2d 603 (1979). In any event, the court offered to give the jury cautionary instructions, and counsel decided that this would not be helpful at that point in the trial. Thus, if there was error, we find that it was waived by the refusal to accept the lower court's offer to give a cautionary instruction. See Commonwealth v. Quartman, 253 Pa. Superior Ct. 460, 464, 385 A.2d 429 (1978).
Judgment of sentence affirmed.
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