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submitted: February 17, 1987.


Appeal from Judgment of Sentence October 17, 1985 in the Court of Common Pleas of Allegheny County, Criminal No. CC 8007065A. Appeal from Judgment of Sentence October 17, 1985 in the Court of Common Pleas of Allegheny County, Criminal No. CC 8007098A.


Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant (at 1492 and 1372).

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee (at 1492 and 1372).

Rowley, Olszewski and Cercone, JJ. Rowley, J., files a concurring and dissenting statement.

Author: Olszewski

[ 367 Pa. Super. Page 157]

This is a consolidated appeal from judgments of sentence imposed following appellant's convictions at separate jury trials. The charges against appellant arose out of robberies which occurred on August 5, 1980 (appeal No. 1372 Pittsburgh 1986 -- CC 8007098A), and September 19, 1980 (appeal No. 1492 Pittsburgh 1985 -- CC 8007065A). Although appellant was tried separately on the indictments, he was represented at each trial by the same counsel. No post-verdict motions were filed and, during a consolidated sentencing proceeding, appellant was sentenced to two 10-to-20-year consecutive terms of imprisonment. A petition was brought pursuant to the Post-Conviction Hearing Act, and the court permitted appellant to file post-verdict motions nunc pro tunc. Consolidated post-verdict motions were filed and denied and the sentences were reinstated. This appeal was timely filed.

Appellant now raises numerous challenges to both convictions. For the sake of clarity, these challenges will be addressed as they relate to each appeal number. In regard to No. 1492, we find that appellant's challenges are meritless and, consequently, affirm the judgment of sentence. As to No. 1372, we are unable to determine from the record whether the court imposed sentence upon conviction of an offense which merged for purposes of sentencing. Accordingly,

[ 367 Pa. Super. Page 158]

    the judgment of sentence in No. 1372 is vacated and the case is remanded for resentencing.

I. Background

A. Appeal No. 1372

On August 5, 1980, appellant, while posing as a customer, entered the Douglas Funeral Home claiming that his brother had passed away. After conversing with the proprietor, Mr. Douglas, for one-half hour, appellant left only to return later that day. Upon his return, the proprietor's wife escorted appellant to her husband's office. The second meeting with Mr. Douglas lasted almost thirty minutes, after which time appellant drew a gun and demanded that Mr. Douglas hand over his money. Mr. Douglas grabbed for the gun and a scuffle ensued. With Mr. Douglas lying on the floor, appellant pointed the gun at him and demanded his wallet. Mr. Douglas gave appellant his wallet and the latter then demanded the victim's watch and money. Having received these other items, appellant fled. Mr. Douglas immediately notified the police and, several weeks later, identified appellant from a photographic array.

Mrs. Douglas corroborated her husband's testimony, positively identified appellant from a photo array, and made a positive in-court identification of appellant as the assailant.

Appellant was charged and convicted of one count each of robbery, 18 Pa.C.S.A. Sec. 3701(a)(1)(ii), and theft by receiving stolen property, 18 Pa.C.S.A. Sec. 3925.

B. Appeal No. 1492

On September 19, 1980, William Foglia was working at Home Beer Distributing, a business which was owned by his friend, Gloria Amen. Mr. Foglia testified that appellant had been standing near the door of the distributorship for over ten minutes before requesting two cases of beer. Mr. Foglia went into the store and upon returning with the beer, he saw Ms. Amen handing money to appellant. Mr. Foglia then saw that appellant had a gun in his hand. Appellant then pointed the gun at Mr. Foglia and demanded his wallet. Mr. Foglia responded that he didn't have a

[ 367 Pa. Super. Page 159]

    wallet. He did have $750.00 on him, but he never gave any of it to appellant. Appellant then escorted both witnesses into the cellar, locked the door, and left the premises.

Both Ms. Amen and Mr. Foglia made photographic and in-court identifications of appellant.

Appellant was subsequently charged and convicted of one count of robbery, 18 Pa.C.S.A. Sec. 3701(a)(1)(ii).

II. Allegations of Ineffectiveness

In challenging both convictions, appellant makes several claims attacking the performances of trial counsel. Our examination of counsel's alleged ineffectiveness requires us first to determine whether the underlying claim is of arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). If the answer to that inquiry is in the affirmative, we must then determine whether the strategy chosen by counsel had a reasonable basis designed to effectuate the client's interest. Id. Finally, the defendant must show that he was harmed or prejudiced by counsel's ineffectiveness. Id. Should we determine that a claim has arguable merit but there has been no evidentiary hearing to determine if counsel had a reasonable basis for his actions, we will remand the case for an evidentiary hearing. Commonwealth v. Shablin, 362 Pa. Super. 289, 524 A.2d 511 (1987). Where it is clear, however, that the claim of ineffectiveness is meritless, there is no need to remand for a hearing. Id.

A. Alibi Defense

In both appeal No. 1492 and No. 1372, appellant raises a claim of ineffectiveness based upon trial counsel's alleged failure to investigate his alibi defense. In support of this claim, he offers his statement made at the sentencing hearing:

During the time they said I was supposed to have robbed someone, I had been released from Central Pavilion Hospital. I had been robbed. I had contusions, bruised ribs. I wasn't even allowed to sleep for two days. My wife still has the papers to prove it. I couldn't even move

[ 367 Pa. Super. Page 160]

    around good. I still had bandages around me, and he wouldn't produce it for me. I asked him to call witnesses. He wouldn't call witnesses for me. Your Honor, all I'm saying is this: I didn't rob those people.

(Notes of sentencing at 9.) At that same proceeding, appellant's mother testified as follows:

I'm his mother, Judge McGregor, and he was, I can say, bandaged and bruised from being robbed himself the time that he was supposed to have robbed those people, and I gave (trial counsel) the proof, but he never used it. I gave him the papers. When he was in the Central Medical Pavilion up here being treated, I gave him those papers, but he never used it, and he was James' lawyer at the time.

(Notes of sentencing at 10.) In short, appellant suggests that he, his mother, and possibly his wife could have presented an alibi defense.

In seeking to establish that counsel was ineffective for failing to call or investigate witnesses, appellant must demonstrate "(1) the names and whereabouts of these witnesses, (2) the substance of their testimony and (3) how they would have appreciably strengthened his defense. Moreover, . . . (appellant must show) (4) that his trial counsel knew of the existence of the witnesses who purportedly should have been called." Commonwealth v. Clemmons, 505 Pa. 356, 365, 479 A.2d 955, 959 (1984). See Commonwealth v. Mileshosky, 350 Pa. Super. 127, 133-34, 504 A.2d 278, 280-281 (1986), and cases cited therein; Commonwealth v. Polk, 347 Pa. Super. 265, 273, 500 A.2d 825, 829 (1985); Commonwealth v. Torres, 329 Pa. Super. 58, 68, 477 A.2d 1350, 1355 (1984).

Based upon the statements presented at the sentencing proceeding, appellant has not satisfied the requirements of Clemmons. Certainly, by stating that trial counsel was aware of the previously identified witnesses, appellant established two of the prerequisites. Neither appellant nor his mother indicated, however, the ...

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