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COMMONWEALTH PENNSYLVANIA v. BOBBY AYCOCK (12/16/83)

filed: December 16, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
BOBBY AYCOCK, APPELLANT



No. 222 Philadelphia, 1981, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 627-629 April, 1980.

COUNSEL

George T. Guarnieri, Philadelphia, for appellant.

Leslie Sudock, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Wieand and Hoffman, JJ. Spaeth, J., filed a concurring opinion.

Author: Wieand

[ 323 Pa. Super. Page 65]

Bobby Aycock was tried non-jury and found guilty of aggravated assault*fn1 and possession of an instrument of crime.*fn2 On direct appeal from the judgments of sentence,*fn3 Aycock argues (1) that the evidence was insufficient to sustain the convictions, (2) that trial was held in violation of Pa.R.Crim.P. 1100, and (3) that trial counsel was ineffective (a) for failing to call appellant or other witnesses on behalf of the defense and (b) for arguing post-verdict motions orally at the conclusion of the trial instead of filing written post-trial motions. We agree that the evidence was insufficient to sustain the conviction for possessing an instrument of crime. Appellant's remaining contentions, however, are lacking in merit.

After Aycock had been found guilty, the trial court advised him of his right to file post-trial motions. One of the options available to him was the right to file oral, post-trial motions immediately. See: Pa.R.Crim.P. 1123(b). After appellant and his trial counsel had conferred, a decision was made to "go ahead with oral post verdict motions

[ 323 Pa. Super. Page 66]

    right now." The court thereupon heard immediate argument. This procedure was sufficient to preserve for appellate review the issues which appellant argues in this court. See: Commonwealth v. Lewis, 315 Pa. Super. 328, 330-31 n. 5, 461 A.2d 1305, 1306 n. 5 (1983); Commonwealth v. Von Aczel, 295 Pa. Super. 242, 245 n. 1, 441 A.2d 750, 751 n. 1 (1981). The use of oral post-verdict motions has been encouraged by the express language of Pa.R.Crim.P. 1123(b); and counsel will not be deemed ineffective for using authorized procedure. In this case, moreover, appellant had been instructed by the court, had conferred with counsel, and had consented affirmatively to proceed with oral motions. Cf. Commonwealth v. Lewis, supra. Appellant's argument that trial counsel was ineffective for proceeding by oral post-trial motions, therefore, must be rejected.

In reviewing a challenge to the sufficiency of the evidence, our task is to determine whether, "'accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the [fact finder] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.'" Commonwealth v. Minoske, 295 Pa. Super. 192, 198, 441 A.2d 414, 417 (1982) quoting Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969). Accord: Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983).

"Aggravated assault is committed when a person 'attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life.' 18 Pa.C.S.A. ยง 2702(a)(1)." Commonwealth v. Williams, 290 Pa. Super. 209, 215, 434 A.2d 717, 720 (1981).

The evidence in this case showed that Aycock had used a piece of channel steel, approximately eighteen inches in length, to strike ...


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