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COMMONWEALTH PENNSYLVANIA v. EDWARD HIGGINS (08/16/85)

filed: August 16, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD HIGGINS, JR., APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. CALVIN WIGGINS, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Chester County, Criminal No. 1521-82. Appeal from the Judgment of Sentence in the Court of Common Pleas of Chester County, Criminal No. 1522-82.

COUNSEL

John J. Stanzione, Assistant Public Defender, West Chester, for appellant in No. 1236.

Samuel C. Stretton, Philadelphia, for appellant in No. 1301.

Stuart B. Suss, Assistant District Attorney, West Chester, for Com. appellee.

Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ.

Author: Spaeth

[ 346 Pa. Super. Page 242]

These are appeals from judgments of sentence for burglary, theft by unlawful taking, receiving stolen property, and criminal conspiracy. Appellants argue (1) that the suppression court erred in denying their motion to suppress, and (2) that the trial court erred in giving a "missing witness" charge to the jury. Appellant Higgins argues that the trial court erred (3) in not discharging him pursuant to Pa.R.Crim.P. 1100, and (4) in refusing to strike the panel after allegedly prejudicial remarks by the prosecutor. Appellant Wiggins argues*fn1 (5) that trial counsel was ineffective

[ 346 Pa. Super. Page 243]

    in representing both him and appellant Higgins; that the trial court erred (6) in admitting opinion testimony; (7) in allowing into evidence allegedly prejudicial remarks by a witness and the prosecutor; (8) in giving an improper charge and making improper comments to the jury; and (9) that trial counsel was ineffective in not preserving arguments (6) through (8).

We shall discuss only the first of these nine arguments. Arguments (2) and (3) are without merit for the reasons expressed in the opinion of the trial court; argument (4) is without merit, see Commonwealth v. Nesbitt, 276 Pa. Super. 1, 10, 419 A.2d 64, 69 (1980); arguments (5) through (8) have been waived as they were neither raised at or before trial, and were not included either in post-trial motions or in the Statement of Matters Complained of on Appeal, which was requested by the trial court, see R. (Higgins) at 26; R. (Wiggins) at 11, 12, 21; Commonwealth v. Gregory, 309 Pa. Super. 529, 455 A.2d 1210 (1983); Commonwealth v. Folino, 293 Pa. Super. 347, 439 A.2d 145 (1981); Pa.R.App.P. 1925(b). As regards appellant Wiggins's claim that trial counsel was ineffective in not preserving arguments (5) through (8): Appellate counsel is not the same as trial counsel, and this appeal is his first opportunity to raise the ineffectiveness claim. It is therefore properly before us. However, argument (5) is without arguable merit; as the defenses of both appellants were entirely consistent, there was no potential harm to appellant Wiggins

[ 346 Pa. Super. Page 244]

    from the dual representation, see Commonwealth v. Joyner, 489 Pa. 502, 506, 414 A.2d 1003, 1005 (1980); compare Commonwealth v. Evans, 306 Pa. Super. 25, 451 A.2d 1373 (1982), and trial counsel's decision to proceed was made only after full consultation and colloquy. N.T. 12/14/82 at 7-13, 17; argument (6) is without arguable merit, see Commonwealth v. Bennett, 471 Pa. 419, 423-24, 370 A.2d 373, 375 (1977); Commonwealth v. Worrell, 277 Pa. Super. 386, 391-92, 419 A.2d 1199, 1201 (1980); and so are arguments (7) and (8), see Commonwealth v. Nesbitt, supra; Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). Trial counsel was therefore not ineffective. See Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983).

On appellants' first argument:*fn2 We have concluded that the facts of record establish ...


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