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COMMONWEALTH PENNSYLVANIA v. JAMES MITCHELL HOUSE (02/10/88)

filed: February 10, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES MITCHELL HOUSE, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County, Nos. 1652, 1653, 1655 of 1986.

COUNSEL

David A. Schroeder, Erie, for appellant.

Timothy J. Lucas, Assistant District Attorney, Erie, for Com., appellee.

Rowley, Del Sole and Montgomery, JJ.

Author: Rowley

[ 371 Pa. Super. Page 26]

Appellant James House appeals from the judgment of sentence of seven to fourteen years imprisonment that was imposed on March 27, 1987. He raises three issues:*fn1 1) whether trial counsel was ineffective for stating as mere "boilerplate" the allegations in appellant's motion for a new trial and/or arrest of judgment that the verdict was contrary to the evidence, to the weight of the evidence, and to the law; 2) whether trial counsel was ineffective for failing to locate and call an alibi witness allegedly identified by appellant; and 3) whether the sentence imposed was excessive. We affirm.

The charges against appellant arose out of four separate incidents. The first of these, the stabbing of one Henry Pullium on June 14, 1986, resulted in appellant's plea of guilty on January 16, 1987, to a charge of simple assault. The remaining incidents involved appellant's former girlfriend, Denise Hayes. Appellant was charged with committing simple assault against Hayes on June 28, 1986, with robbing her on July 2, 1986, and with recklessly endangering and committing aggravated assault against her on July 3, 1986.

On January 16, 1987, a jury found appellant not guilty of robbery but guilty of the other charges. A post-verdict motion was filed by trial counsel alleging in boilerplate form that the verdict was against the weight of the evidence, contrary to the law, and contrary to the evidence. The post-verdict motion also alleged five instances of trial counsel's ineffectiveness. None of these claims of ineffectiveness, however, concerned counsel's use of boilerplate challenges to the weight and sufficiency of the evidence. Because of the allegations of his own ineffectiveness, counsel was permitted to withdraw, and present counsel entered his appearance. An evidentiary hearing was held on the post-verdict motions so that new counsel could present evidence relating to trial counsel's alleged ineffectiveness.

[ 371 Pa. Super. Page 27]

Trial counsel was not called to testify. Following the hearing, the trial court denied the post-verdict motions. Thereafter, appellant was sentenced to one to two years imprisonment on each charge of simple assault and five to ten years imprisonment on the charge of aggravated assault, into which the charge of recklessly endangering merged for sentencing purposes. All sentences were to run consecutively. The trial court denied appellant's motion to modify sentence, and this timely direct appeal followed.

Appellant bases his first issue, whether trial counsel was ineffective for stating several potential grounds for post-verdict relief in boilerplate form, on a settled principle of law: Boilerplate attacks on a verdict are inadequate to preserve issues for appellate review. Commonwealth v. Dougherty, 351 Pa. Super. 603, 607, 506 A.2d 936, 938 (1986). This specific claim of ineffectiveness is raised for the first time on appeal. However, a claim of ineffectiveness must be raised at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents appellant. Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 646 (1982); Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978). Where, as here, new counsel enters his appearance at the post-verdict stage, he is required to raise, in the trial court, any claim of ineffectiveness on the part of trial counsel as a ground for post-verdict relief. Commonwealth v. Cargo, 498 Pa. at 19-20, 444 A.2d at 646-47; Commonwealth v. Seachrist, supra. Present counsel did not request permission to file post-trial motions nunc pro tunc on the basis that trial counsel had been ineffective for filing only boilerplate post-trial motions and did not raise with specificity in an amended post-trial motion appellant's challenges to the verdict.*fn2 Present counsel also failed to raise appellant's challenges to the verdict at the hearing on the post-trial

[ 371 Pa. Super. Page 28]

    motions. The record in this case makes clear that present counsel had ample opportunity to bring to the attention of the trial court the alleged ineffectiveness of trial counsel in presenting appellant's challenges to the verdict in boilerplate form. By not taking advantage of that opportunity, present counsel failed to raise that claim of trial counsel's ineffectiveness at the earliest stage in the proceedings at which ...


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