March 11, 1983
COMMONWEALTH OF PENNSYLVANIA
CARMELLA B. GEE, APPELLANT
No. 343 Pittsburgh 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at Nos. CC8001448 & CC8001958.
Before Cercone, P.j., Popovich and Van Der Voort, JJ.
This is an appeal from the judgment of sentence for criminal conspiracy and twenty-eight (28) counts of receiving stolen property. We affirm.
On appeal, appellant, Carmella Gee, complains that: 1) the evidence was insufficient to sustain the jury's verdict; 2) the lower court abused its discretion in denying her pre-trial motion to sever; 3) exculpatory evidence was withheld by the prosecution; and 4) trial counsel was ineffective.
As for appellant's first two averments, we have examined the evidence, the applicable law and find no reason to grant appellant the relief sought. Also, we find that the pre-trial (per Judge Clarke) and post-trial (per Judge Lewis) motions courts adequately discussed such matters in their Opinions to this Court; accordingly, we will not comment on them further. Next, in regard to Point #3, we observe that appellate counsel, who is other than trial counsel, claims that exculpatory evidence was withheld by the prosecution to his client's detriment. Our review of the record indicates that such an issue is conspicuously missing from those points (15 in all) raised by trial counsel in post-trial motions. Therefore, since appellate counsel does not attribute trial counsel with ineffectiveness for not raising the issue sooner, the issue is waived. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Klaric, 263 Pa. Super. 286, 397 A.2d 1212 (1979); Commonwealth v. Sweitzer, 261 Pa. Super. 183, 395 A.2d 1376 (1978).*fn1
Lastly, appellate counsel contends that trial counsel was ineffective: 1) in failing to request that the jury be charged that the guilt or innocence of the appellant and the co-defendant at the joint trial be considered separately; 2) in failing to take exception to an alleged misleading remark made by the judge in the charge to the jury; and 3) in not requesting a Bill of Particulars when appellant was charged with receiving "assorted jewelry."
As a matter of procedure, we note that, inasmuch as appellate counsel's representation of the accused originated in the instant appeal, it is proper that the stewardship of trial counsel be brought to light now. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976).
In regard to appellant's first and second allegations, which assail the propriety of the trial court's charge, we do not embrace the position that such assertions constitute grounds for labeling trial counsel inept. As this Court has stated in the past, in evaluating the correctness of the instructions to a jury, the charge must be read and considered as a whole, for it is the general effect of the charge that controls. Commonwealth v. Jones, 300 Pa. Super. 338, 446 A.2d 644 (1982). In accordance with such a tenet, we have examined the instructions in toto (N.T. 542-579) and find that the trial court meticuously reviewed the elements of the offenses, as they applied to each defendant, and took care to caution the jury that guilt had to be established by the Commonwealth beyond a reasonable doubt as to each of the accused. Since our review of the charge discloses that it was proper in all respects, we cannot hold counsel ineffective for neglecting to lodge any objection thereto. See Commonwealth v. Hubbard, supra; Commonwealth v. Jones, supra.
Appellant's Point #3, which concerns counsel's neglect in not requesting a Bill of Particulars as to those items she was charged with receiving, is no more persuasive than the others offered by her as reflective of counsel's ineffectiveness.
In Commonwealth v. Dreibelbis, 493 Pa. 466, 472, 426 A.2d 1111, 1114 (1981) our Supreme Court stated:
"A bill of particulars in intended to give notice to the accused of the offenses charged in the indictment so that he may prepare a defense, avoid surprise, or intelligently raise pleas of double jeopardy and the statute of limitations." (Citations omitted)
Instantly, as correctly noted by the prosecution in its brief to this Court, the charges of Receiving Stolen Property lodged against the appellant were based upon numerous items of evidence recovered from a lawful search of appellant's dwelling. The initial complaints which were filed in this case specified the items allegedly received by the appellant. The appellant also received a copy of the search warrant and the inventory receipt of the items recovered. These documents also specifically designated the items. (N.T. 404; Suppression Hearing 65) Consequently, albeit the Criminal Informations did not particularize the items of jewelry, the Informations did furnish the date, time, place and general nature of the offense, which, in turn, were premised upon the complaints. Based on the aforesaid, we conclude that appellant had sufficient notice of the charges in order to prepare a defense. Accordingly, we hold that appellant has fallen short of proving that trial counsel was less than effective.
We, having found no justification to grant the appellant the relief requested as to any of her contentions, affirm the judgment of sentence.