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COMMONWEALTH PENNSYLVANIA v. ANTHONY HARPER (05/21/85)

submitted: May 21, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY HARPER, APPELLANT



Appeal from the PCHA of May 16, 1984, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 179-181 October Term 1975.

COUNSEL

Leslie J. Carson, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cavanaugh, Cirillo and Hester, JJ.

Author: Hester

[ 346 Pa. Super. Page 108]

In this appeal from denial of Post Conviction Hearing Act [PCHA] relief, appellant alleges numerous instances of ineffectiveness of his trial counsel and the illegality of his separate sentences for first degree murder and robbery. Finding neither ineffectiveness of counsel nor a double jeopardy violation, we affirm.

The material facts are as follows.

The victim, Matthew Boylan, was robbed and fatally wounded while working in his neighborhood grocery store at approximately 11:35 A.M. on September 13, 1975. Detective Gerrard, the supervising detective, arrived at the victim's store around noon. Throughout the afternoon, he and fellow police officers interviewed individuals who were at or near the scene of the crime. Two eyewitnesses told Gerrard they observed a black male enter the victim's store; that they heard a shot; that they observed the same male exit the store; that he was about five feet eight inches tall,

[ 346 Pa. Super. Page 109]

    weighed about 250 pounds, and was wearing a gray sweatshirt; that they observed the same male flee on a red ten-speed bicycle which had curled handle bars, reflectors, and a carrier seat; and, that immediately after the black male fled, they entered the store and found the victim lying on the floor.

Another witness, Ronald Pelligrino, informed Gerrard that he was in the victim's store just prior to the shooting; that, while in the store, he stood next to a black male of approximately the same description supplied by the other two witnesses; that he exited the store and left Boylan alone with the black male; that he went to his home which was located next door to the victim's store; and that moments later he heard the victim had been shot and returned to the store. Armed with the information supplied by the three witnesses, Gerrard and fellow police officers combed the area in an effort to locate anyone who saw or knew the alleged assailant.

As a result of their investigation, the police interviewed Charles Linton, who was employed at a grocery store located approximately one and one half city blocks from the victim's store. Linton informed Gerrard that, prior to the robbery and shooting, he conversed with a black male who met the description supplied by the other three witnesses; that this conversation took place outside Linton's place of employment; that, although he didn't know his name, the black male had been a customer of the grocery store for approximately two years; and, that, after the brief conversation, this same male pedalled a red ten-speed bicycle in the direction of the victim's store. About 5:00 P.M., Linton positively identified appellant from approximately one dozen photographs as the black male he conversed with prior to the crime.

At approximately 6:00 P.M., Gerrard and fellow police officers arrived at appellant's residence. The front door was open and some of the officers entered the home. Immediately upon entering, Gerrard observed a red ...


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