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submitted: October 15, 1984.



Robert J. Campbell, New Brighton, for appellant.

Anthony J. Berosh, Assistant District Attorney, Beaver, for Commonwealth, appellee.

McEwen, Olszewski and Popovich, JJ.

Author: Popovich

[ 337 Pa. Super. Page 296]

This is an appeal from the order of the Court of Common Pleas of Beaver County denying the appellant's, Larry Ray Nelson's, request for relief pursuant to the Post-Conviction Hearing Act (PCHA). 19 Pa.S.A. § 1180-1 et seq., as amended; reenacted at 42 Pa.C.S.A. §§ 9541-9551. We affirm the PCHA court in regard to the suppression and

[ 337 Pa. Super. Page 297]

    jury charge issues, but are constrained to reverse as to the merger and allocatur claims.

The appellant, following a trial by jury, was convicted of robbery, aggravated assault and simple assault in the shooting of gas station attendant Rosemarie Sisco, in the presence of her 10-year-old son Eugene, on August 4, 1979. Post-trial motions, supplemented with a brief restricted to the single question of: "1. Did the Court err in denying defendant's motion for a 'demurrer' based on the insufficiency of proof of identification by prosecution witnesses?", were denied. Thereafter, the appellant was sentenced to 2 1/2-5 years for robbery. For the aggravated assault conviction, the appellant was ordered to pay the costs of prosecution and a fine of $500, as well as being confined for not less than two nor more than four years at the Western Correctional, Diagnostic and Classification Center in Pittsburgh. The sentences were ordered to be served concurrently.

On appeal to this Court, in which trial counsel from the public defender's office raised the only issue argued below, i.e., the identification issue (see PCHA Hearing Tr. at 26), we affirmed per curiam the judgment of sentence. Commonwealth v. Nelson, 298 Pa. Super. 586, 443 A.2d 384 (1982) (Hester, Popovich and Montgomery, JJ.). No further appeal was taken.

On October 18, 1982, the appellant filed a pro se PCHA petition claiming the denial of his constitutional right to competent representation and the post-trial securement of exculpatory evidence. At the appellant's request, (private) counsel was appointed and submitted a "First Amended Motion For Post Conviction Relief" reasserting the competency question in the context of prior counsel's failure to raise at post-trial and on appeal:

1) the trial court's alleged error in not suppressing the identification testimony of the Siscos on the ground that "both witnesses participated in a post-arrest photo array at which Defendant was not represented by counsel . . . ." (Paragraph 11, subsection (a))

[ 337 Pa. Super. Page 2982]

) the deficiency of the jury charge in not requiring the prosecution to prove by "clear and convincing" evidence a basis for the Siscos' identification testimony independent of the allegedly tainted post-arrest photo array.

3) the merger of aggravated assault and simple assault with the robbery offense.

At the commencement of the PCHA hearing, counsel for the appellant was granted his request to assail, in addition to the other grounds raised, prior counsel's failure to call Miss Teri Taylor, the appellant's sister, and a Miss Bonita Humphrey, both of whom, according to trial counsel's own recollection, would have testified to speaking on separate occasions with the victim and being told by her that "she was really not sure of who [sic] her assailant was . . . ." (PCHA Hearing Tr. at 22)

However, just prior to the completion of the hearing, the appellant's counsel's attempt to add to the issues already mentioned the claim of prior counsel's failure to petition for allowance of appeal to the Supreme Court of Pennsylvania was denied by the PCHA court as "outrageous." (PCHA Hearing Tr. at 28) Undaunted, after the PCHA hearing, counsel for the appellant filed a "Second Amended Motion For Post Conviction Relief" raising all of the issues previously mentioned, with the inclusion of the allocatur claim. Nonetheless, all of the issues were found wanting and the relief requested was denied. This appeal ensued and the claims raised are properly before us for review. See Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

Initially, the appellant complains that prior counsel was ineffective for failing to raise at post-trial or on prior appeal the suppressibility of the Siscos' 3-4 post-arrest photo identifications of him in the absence of counsel, citing to Commonwealth v. Riley, 284 Pa. Super. 280, 425 A.2d 813 (1981), which relies upon the ruling in Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), that an accused has a right to be represented by counsel at a post-arrest photographic display.

[ 337 Pa. Super. Page 299]

Since the merits of the aforementioned issue were not considered previously by this Court there is no reason to find the matter finally litigated, see Commonwealth v. Hobson, 286 Pa. Super. 271, 428 A.2d 987 (1981), nor is it waived given its juxtaposition with the "extraordinary circumstances" of counsel's ineffectiveness for its failure to appear previously on appeal. 42 Pa.C.S.A. § 9544(b)(2).

We note that both the Commonwealth and the PCHA court counter the appellant's tainted photo-array argument with the citation to United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) and Commonwealth v. Jackson, 227 Pa. Super. 1, 323 A.2d 799 (1974) as support for the abrogation of the Whiting holding concerning one's right to counseled photo-arrays following arrest.

We, as has been the case so often with our Supreme Court in like circumstances, find it unnecessary to reach the question of the continuing viability of Whiting following Ash. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983) and compare with Commonwealth v. Ferguson, 327 Pa. Super. 305, 475 A.2d 810 (1984) (Whiting still good law in Pennsylvania despite Ash).

Here, viewing the evidence in a light most favorable to the verdict-winner, as we must, and drawing all proper inferences therefrom the trier of fact could reasonably have found beyond a reasonable doubt that the appellant was the perpetrator of the crimes charged. See Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976). In fact, this was the conclusion drawn by this Court on appellant's initial appeal in which his counsel (now alleged to be ineffective) attacked the Siscos' pre-trial identification on inconsistency grounds claiming that a reversal of the trial court's denial of his demurrer was warranted. (See Record No. 11; PCHA Hearing Tr. at 26) Present counsel attempts to resurrect this inconsistency argument under the rubric of ineffectiveness as it relates to the suppression issue. In particular, appellant's counsel writes:

Both Rosemarie Sisco (Tr. 28) and Eugene Sisco (Tr. 32) testified at trial that they ...

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