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COMMONWEALTH PENNSYLVANIA v. THEODORE CHASE (03/19/87)

submitted: March 19, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
THEODORE CHASE, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC8511673.

COUNSEL

Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Rowley, Del Sole and Tamilia, JJ.

Author: Rowley

[ 365 Pa. Super. Page 574]

OPINION OF THE COURT

Appellant Theodore Chase takes this appeal from a judgment of sentence of the Allegheny County Court of Common Pleas.

On December 5, 1986, appellant was charged with four counts of terroristic threats. On March 5, 1986, a jury found him guilty of three of the four counts. Appellant filed a timely, counseled post-trial motion on March 7, 1986 as well as a timely, uncounseled post-trial motion a few days later. The trial court denied both motions. At the sentencing hearing, the judge stated that the foreperson of the jury had been called on the day after the verdict had been rendered and a threatening message had been left on her telephone answering machine. Although the judge stated that he was not accusing appellant of the act, he proceeded to eliminate other possible persons connected with appellant who could have made such a call. He also characterized both appellant's conduct for which he was convicted and the telephone call as "bizarre." Appellant was sentenced to eleven and one-half to twenty-three months imprisonment for each of the three convictions, the sentences to run consecutively, and with a possibility of parole after each sentence. A motion to modify sentence was denied and this appeal followed.

At all times relevant to the instant case, appellant was an inmate at Western State Correctional Institution in Pittsburgh, PA. The victim, Dr. Michael Gilberti, the medical director at the penitentiary, had been treating appellant for a hand injury for approximately two years.

Three issues are presented for our consideration: (1) whether the evidence presented by the Commonwealth was sufficient to uphold appellant's conviction on three counts of terroristic threats; (2) whether the Commonwealth failed to establish the extreme fear of the victim and the requisite

[ 365 Pa. Super. Page 575]

    intent of appellant necessary for a conviction of terroristic threats; and (3) whether the sentence imposed by the trial court is "illegal" due to the court's reliance on an impermissible factor.

We find that issues one and two have been waived for failure to include them in either the counseled or the uncounseled posttrial motions. Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 ...


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