No. 769 Pittsburgh, 1981, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC8007234A.
Before Hester, McEWEN and Johnson, JJ.
Appellant was charged with one count, each, of robbery,*fn1 receiving stolen property,*fn2 theft by unlawful taking or disposition*fn3 and criminal conspiracy.*fn4
Following a jury trial before Judge O'Brien, of Allegheny County on March, 19, 1981, appellant was found guilty of all charges. Appellant then filed timely post-verdict motions alleging various errors.
Following a denial of appellant's motions, he was sentenced to a period of not less than ten (10) nor more than twenty (20) years.
From the judgment of sentence, appellant brings this appeal. Appellant raises two issues on appeal: (1) whether appellant's post trial counsel was ineffective; and (2) whether the trial court erred in refusing to grant a motion to dismiss the jury panel.
The Commonwealth's evidence is as follows:
At approximately 8:00 p.m. on September 18, 1980, appellant and two associates entered Woody's Drug Store in West Mifflin. Appellant and one of his associates walked to the rear of the store to the pharmacy area while the other man west to the greeting card aisle. As Michael Macosko, the pharmacist on duty, offered assistance to appellant, the latter pulled a gun and ordered him to lie down. Seconds later, he ordered a female employee to the floor beside Macosko. Appellant then ordered Macosko to get up and get him a number of specific drugs, as well as all of the money from the "cash drawer." When Macosko did so, appellant handed the drugs and approximately $1,500.00 in cash to an associate who put it in a bag. Appellant then ordered Macosko back on the floor, after which one of the robbers tied his ankles with adhesive tape and took his wallet containing $160.00.
During the course of the robbery, one of the three men approached employee Jim Maholage at the front register and ordered him to open it and lie down. After he did so, the man grabbed a quantity of bills. Shortly thereafter, appellant and his two associates fled.
Appellant first asserts that post trial counsel was ineffective for failing to preserve a suppression issue for appeal. This suppression issue involved whether the photographic array, in which appellant was identified as one of the men who participated in the robbery, was improperly suggestive.
It is well established that counsel may not be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Tarver, 491 Pa. 253, 420 A.2d 438 (1980). Equally established is the rule that an appellate court will not examine the basis for trial counsel's course of action unless the claim not pursued was of arguable merit. Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980).
The record reveals that both witnesses were shown two arrays of photographs. The arrays were displayed to the witnesses separately and at different times. No comments implying that a photograph of a suspect was contained in the array, were made by the police. Each array contained eight photographs of black males; appellant's photograph was included in the second array only and was identified by both witnesses.
At the conclusion of the Suppression Hearing, counsel for appellant challenged only the propriety of the second array, that from which appellant's photograph was selected. Appellant complained that four of the photographs were of individuals who did not have afro haircuts. This was apparently considered improper because appellant had been described by both witnesses as having worn an afro haircut on the night of the crime. This distinction, however, clearly worked to appellant's benefit, not detriment, because the photograph of appellant which was selected depicted him not with an afro, but with braided hair.
Any discrepancy between appellant's photograph and his description as given on the night of the crime may be seen not as suggesting but ...