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COMMONWEALTH PENNSYLVANIA v. JOSEPH NICOLELLA (06/09/82)

submitted: June 9, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH NICOLELLA, APPELLANT



No. 227 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at No. 722 of 1981.

COUNSEL

Frank H. Morgan, Jr., Ardmore, for appellant.

John A. Reilly, District Attorney, Media, for Commonwealth, appellee.

Cavanaugh, Rowley and Watkins, JJ.

Author: Rowley

[ 307 Pa. Super. Page 98]

On April 23, 1981, appellant was convicted, after a jury trial, of conspiracy to deliver a controlled substance. Post-trial motions were filed and denied and appellant was sentenced to not less than six months or more than twenty-three months imprisonment. This appeal followed.

The facts of the case are as follows. On January 15, 1981, appellant, then an inmate at the Delaware County Prison, allegedly asked another inmate, James Hamm, to inquire if one of the guards would do him a "favor". The favor consisted of obtaining marijuana. Appellant gave Hamm $30.00 and a note containing the name and address of a contact. Hamm gave the money and the note to prison guard John Showell. Showell alerted his superiors. The next day, prison guard Robert Roane, accompanied by the police, went to the address set out in the note and picked up a package containing marijuana from a woman, who it turned out was appellant's mother.

On appeal, four issues are raised: 1) Was appellant's conviction supported by sufficient evidence?; 2) Was appellant denied his constitutional right to counsel of his choosing?; 3) Did the trial judge err in failing to recuse himself?; and 4) Was appellant's trial counsel ineffective?

I.

In reviewing the sufficiency of the evidence to support a conviction, we must view that evidence in the light

[ 307 Pa. Super. Page 99]

    most favorable to the Commonwealth. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979). All of the evidence received must be considered, whether trial rulings thereon were right or wrong. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). Using that standard, appellant's claim that the evidence was insufficient is without merit.

Appellant argues that the evidence was insufficient in two respects. First, appellant claims that the Commonwealth's exhibits were never received into evidence. Second, appellant claims there was insufficient evidence to ...


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