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COMMONWEALTH PENNSYLVANIA v. ARTHUR W. HECKMAN (05/04/87)

submitted: May 4, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ARTHUR W. HECKMAN, JR., APPELLANT



Appeal from the Judgment of Sentence August 12, 1985, in the Court of Common Pleas of Berks County, Criminal No. 324 1984.

COUNSEL

John T. Forry, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, for Com., appellee.

Wieand, Olszewski and Hoffman, JJ. Wieand, J., filed a concurring statement.

Author: Olszewski

[ 366 Pa. Super. Page 226]

This is an appeal from the judgment of sentence imposed following appellant's conviction for involuntary deviate sexual intercourse,*fn1 corruption of minors,*fn2 and indecent exposure.*fn3 Appellant presents three issues for our review: (1) whether the trial court erred in ruling that the victim, age five at the time of the offense, possessed the requisite competency to testify; (2) whether the trial court properly imposed consecutive sentences for the three convictions; and (3) whether the evidence was sufficient to sustain the verdict in light of the trial court's refusal to allow defendant's alibi witness to testify. For the reasons which follow, we conclude that issues (1) and (3) are waived. Having considered appellant's remaining issue, we find it to be without merit and therefore affirm the judgment of sentence.

This matter involves appellant's sexual assault of a five-year-old child. The victim, J.M., testified at trial that appellant licked his "pee-pee" and identified his "pee-pee" as being his penis. J.M. further stated that appellant "pulled his [appellant's] pee-pee out" and made J.M. and his sister, H.M., touch it. The jury returned a verdict of guilty on November 15, 1984. Thirteen days later, on November 28, 1984, appellant filed post-verdict motions which the trial court subsequently denied. Appellant was then sentenced on August 12, 1985, to prison terms of five to ten years on his conviction of involuntary deviate sexual intercourse and six months to three years each on his convictions of corruption of minors and indecent exposure. Appellant's sentence for indecent exposure was to be served concurrently with his sentence for corruption of minors and those sentences were to be served consecutively with appellant's sentence for involuntary deviate sexual intercourse. Thereafter, on

[ 366 Pa. Super. Page 227]

August 26, 1985, appellant filed a pro se motion for reconsideration and modification of sentence nunc pro tunc, which the trial court denied, treating it as having been timely filed.*fn4 Appellant filed a timely notice of appeal on August 27, 1985.

We do not address the merits of appellant's first and third issues as they have not been properly preserved for our review. Pennsylvania Rule of Criminal Procedure 1123(a) states in pertinent part:

Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment . . . [O]nly those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard.

Pa.R.Crim.P. 1123(a).

Interpreting this rule, our courts have held that only those issues included in post-verdict motions will be considered preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Cherpes, 360 Pa. Super. 246, 520 A.2d 439 (1987); Commonwealth v. Shain, 324 Pa. Super. 456, 471 A.2d 1246 (1984). Appellant's first issue is not ...


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