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COMMONWEALTH PENNSYLVANIA v. JAMES MCCORMICK (06/11/82)

SUPERIOR COURT OF PENNSYLVANIA


June 11, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES MCCORMICK, APPELLANT

No. 197 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No. 367 March Term, 1980.

Before Wieand, Beck, and Hoffman, JJ.

Per Curiam:

Judgment of sentence affirmed.

MEMORANDUM

Appellant contends that trial counsel was ineffective in waiving an objection to the jury charge on the requisite state of mind for the offense of unauthorized use of an automobile.*fn1 Trial counsel utterly failed to preserve the objection for our review,*fn2 but cannot be deemed ineffective for failing to assert a baseless or frivolous issue, see, e.g., Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, (1977). Appellant argues that the lower court should have instructed the jury that he could be found guilty of unauthorized use only if he knew the automobile was stolen or that he knew he did not have the owner's permission to operate it.*fn3 In Commonwealth v. Utter, 279 Pa. Superior Ct. 557, 559 n.2, 421 A.2d 339, n.2 (1980), however, this Court rejected an identical contention, reasoning that a general charge on culpability under 18 Pa.C.S.A. ยง 302 would suffice.*fn4 Appellant has not presented, nor have we found, any basis for distinguishing or overruling Utter. Consequently, appellant was not entitled to the instruction he now seeks. Accordingly, because it would have been useless for counsel to request such an instruction, he cannot be faulted for failing so to do.

Judgment of sentence affirmed.


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