Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, at Nos. 7703-1879-1885, and 221.
Michael A. Jankowski, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Brosky, Rowley and Olszewski, JJ.
[ 347 Pa. Super. Page 565]
This is an appeal from the judgment of sentence imposed after a jury trial at which appellant was found guilty of aggravated assault, robbery, carrying firearms in a public street and without a license in a vehicle, and conspiracy.
Appellant raises three issues for our determination: whether the trial court erred by not granting a motion to suppress appellant's identification due to a suggestive encounter between the victim and appellant at a preliminary hearing; whether initial trial counsel rendered ineffective assistance by failing to appear at appellant's first scheduled preliminary hearing; and whether the trial court abused its discretion by ruling appellant's prior criminal convictions could be used for impeachment.
[ 347 Pa. Super. Page 566]
We have carefully reviewed the record and briefs submitted by counsel and find appellant's issues to be without merit. Therefore, we affirm the judgment of sentence.
On February 17, 1977 Paul Kretovich returned to his car after stopping at a bar to get some beer. As he was getting into his car he was attacked by two males. He was pushed into the car while one of the attackers continually beat him on the head with a pistol. The two attackers jumped into the car, and after driving for ten minutes, pulled over and threw Kretovich out. He summoned the aid of a police patrolman and gave a description and tag number of his car. Thereafter, another police officer spotted the car and began pursuit. The stolen car struck a parked car and the attackers fled on foot. In haste, one of the attackers left some papers and a subpoena addressed to one Allen Whitman on the seat of the car. The next day, Kretovich identified Allen Whitman as one of his attackers. Whitman was arrested and based on information he gave the police, appellant was apprehended.
Kretovich was later subpoenaed to appear at a preliminary hearing in the matter on March 18, 1977. At that hearing only appellant was present, as his accomplice was not transferred from the detention center. Appellant was also without his counsel. The victim saw appellant in the courtroom, but before the hearing could begin it was continued until March 25, 1977.
At trial, appellant moved to have the identification made by Kretovich suppressed due to the March 18th encounter. His motion was denied. After a jury trial, appellant was sentenced on December 12, 1977. Although appellant's trial counsel timely filed an appeal to this Court, counsel never filed an appeal brief. Therefore, this Court entered an order of non pros to appellant's initial appeal. On January 31, 1985, appellant was granted relief under the Post Conviction Hearing Act, ...