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March 11, 1983


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 rather as discouraging an identification.

Moreover, it is apparent from the record that both witnesses possessed a sufficient independent basis upon which to have made an in-court identification. Michael Macosko, one of the witnesses who made an identification, testified that appellant was in his presence, under well illuminated conditions, for approximately ten minutes, that he looked appellant in the face for about half that time with a high degree of attention because appellant was holding a cocked pistol. Although a month had elapsed between the date of the crime and the display of the photographic array, both witnesses demonstrated a high degree of certainty when selecting appellant's photograph. In light of these factors, it must be concluded both witnesses possessed a sufficient independent basis for an in-court identification of appellant. Commonwealth v. Griffin, 271 Pa. Super. 228, 412 A.2d 897 (1979).

Therefore, in that this suppression issue is clearly a meritless claim, appellant's post trial counsel cannot be deemed to be ineffective for failing to raise this issue on appeal. Commonwealth v. Tarver, supra.

Regarding appellant's second allegation of error, appellant contends that the trial court erred by not granting his motion to strike the jury in that appellant, a black, did not participate in jury selection and the jury was an all-white panel. First, appellant did not participate in the selection of the jury because he voluntarily chose not to do so. This fact is shown by the following colloquy:

"THE COURT: All right, that may be evident, but (sic) Mr. Sawyer's own actions, and I've done everything I can to accommodate Mr. Sawyer and I want to instruct Mr. Sawyer that anything that he says from this point on is of his own making. I've told you that this jury was selected in accordance with the law as it exists today and there's no reason for this Court to believe that it's not a fair jury and we're going to proceed with this case with this jury. And if you choose to...

THE DEFENDANT: I didn't pick them people.

THE COURT: Well, you had an opportunity to select this jury and...

THE DEFENDANT: Right, and I said that...

THE COURT: And you refused to participate in it.


THE COURT: And that was the first matter that you made a judgment on and I'm sure that you were properly instructed by Mr. Abrams [defense counsel] at that time.

THE DEFENDANT: Yeah, but I'm also entitled to fourteen people of my peers, and you could look at that jury and see that none of them ain't my peers and I can't get a fair trial with them people."

Therefore, since appellant's decision to refrain from the jury selection process was fully voluntary, appellant's claim is meritless.

Appellant next claims error in that no blacks were present on his jury. However, the brief for appellant is devoid of any reference to the record which would indicate the absence of blacks on his jury was anything other than mere coincidence.

It is well established that a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. Virginia v. Rives, 100 U.S. 313, 322-23 (1800); Thomas v. Texas, 212 U.S. 278, 282 (1909); Commonwealth v. Henderson, 497 Pa. 23, 438 A.2d 951, 953 (1981).

Neither the jury roll nor the venire need to be a perfect mirror of the community or accurately reflect the proportionate strength of every identification group. "Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible." Cassell v. Texas, 339 U.S. 282, 286-87 (1950). See also Commonwealth v. Henderson, Pa. , 438 A.2d 951, 953 (1981).

Thus, it is required that in order to establish the presence of a violation of the rights of an accused, either of two burdens must be satisfied. One who challenges the composition of his jury may do so by showing the under-representation of a cognizable group is a result of prosecutorial overreaching in the voir dire process. Commonwealth v. Futch, 429 Pa. 359, 424 A.2d 1231 (1981). Alternatively, an appellant may establish that the use of the jury selection device unconstitutionally fails to reflect a fair cross-section of the community; proof of such under-representation must be presented. Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977). Neither of these requirements has been met by the appellant in the present case.

Therefore, appellant's argument is again without merit.

Judgment of sentence affirmed.

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