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COMMONWEALTH PENNSYLVANIA v. PAUL S. COLPO (10/14/87)

filed: October 14, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
PAUL S. COLPO, APPELLANT



Appeal from the Judgment of Sentence entered October 31, 1985 in the Court of Common Pleas of Allegheny County, Criminal Division, at No. 008209417.

COUNSEL

Kathleen A. Cribbins, Pittsburgh, for appellant.

Sean K. Code, Assistant District Attorney, Pittsburgh, for Com., appellee.

Del Sole, Popovich and Montgomery, JJ.

Author: Del Sole

[ 367 Pa. Super. Page 225]

The Appellant in this case was charged with one count of arson endangering persons and one count of arson endangering property following a fire which occurred in his home. He was tried by a jury and convicted of both charges. This appeal followed.

[ 367 Pa. Super. Page 226]

The first issue raised by Mr. Colpo is that the trial court erred in denying his pre-trial motions concerning a search warrant and his right to a speedy trial. To be preserved for appellate review an issue must be raised in post-trial motions, and these motions must be filed within ten days of the verdict. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Lynch, 304 Pa. Super. 248, 450 A.2d 664 (1982); Pa.R.Crim.P. 1123. In this case, there are post trial motions contained in the record certified to us from the Court of Common Pleas of Allegheny County, but the motions have not been time stamped by the clerk of courts, and are not dated, also, all that is contained in the record are unsigned, unverified photocopies. We cannot determine if these post-trial motions were timely filed and the issues contained in them preserved for review. Therefore, we will remand the case to the trial court for it to determine if post-trial motions were timely filed and then return the record to this court.

The Appellant has also raised various claims of ineffectiveness of trial counsel, which are issues properly before us, since this appeal is the first time that the Appellant has been represented by counsel other than trial counsel. See Commonwealth v. Reider, 343 Pa. Super. 270, 494 A.2d 461 (1985). We will review these claims in light of the standard recently reiterated by our Supreme Court: a defendant must show that the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced thereby. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

The first of the ineffectiveness claims raised by the Appellant is that trial counsel was ineffective in eliciting damaging testimony during his cross-examination of Lieutenant John Delia of the Option Fire Department in Baldwin Borough which was the first fire department to arrive at the scene. Lieutenant Delia testified on direct examination

[ 367 Pa. Super. Page 227]

    concerning what he found at the scene of the fire, and that in his opinion the fire had multiple points of origin.

Some of this testimony was repeated on cross-examination but our review of the trial transcript reveals no new damaging testimony was elicited by trial counsel when he examined this witness. Appellant's brief points to no specific area of damaging testimony from this witness ...


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