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COMMONWEALTH PENNSYLVANIA v. CRAIG STEVEN THOMAS (02/24/88)

filed: February 24, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
CRAIG STEVEN THOMAS, APPELLANT



Appeal from Order of the Court of Common Pleas, Criminal Division, of Delaware County, No. 3817-85.

COUNSEL

Eileen Courtney, Wayne, for appellant.

Ann A. Osborne, Assistant District Attorney, Radnor, for Com., appellee.

Cirillo, President Judge, and Wieand and Watkins, JJ.

Author: Wieand

[ 372 Pa. Super. Page 351]

Craig Steven Thomas was tried by jury and was found guilty of robbery*fn1 and possession of an instrument of crime.*fn2 Post-trial motions were denied, and Thomas was sentenced to serve a term of imprisonment for not less than six years nor more than twelve years. On direct appeal,*fn3

[ 372 Pa. Super. Page 352]

Thomas argues numerous issues which we will consider seriatim.

On June 20, 1985, while walking on Main Street in Trainer, Delaware County, Roberta Wilkerson was approached from behind by a black male who, at gunpoint, took her purse and a radio which she was carrying. She described the robber as a black male, slender, about 5'7" and wearing light clothes. She could not otherwise identify the robber. Lorraine and Amanda Voshelle witnessed the robbery and gave general descriptions of the robber. Although their descriptions generally matched Thomas's description, neither of them specifically identified Thomas as the robber. Paul Barnard, while driving on Main Street, observed a black male run in front of his car carrying a radio and pocketbook. Barnard saw the man jump into the passenger side of a car, which Barnard followed into a dead end street. There, as the vehicle retreated, Barnard was able to observe the man for a period of several seconds. Barnard also made notes of the description of the man, who was wearing a wide brimmed straw hat, a white shirt, and blue shorts. He returned to the scene approximately one hour later and there identified Thomas, who was then seated in the rear of a police vehicle. Barnard subsequently selected Thomas from a lineup and made a positive identification at trial.

In Commonwealth v. Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (1984), this Court said:

'Sufficiency of the evidence and weight of the evidence are discrete inquiries . . . . In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt . . . .

A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be

[ 372 Pa. Super. Page 353]

    granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion . . . . The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.'

Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471 A.2d 1228, 1229-30 (1984); accord, Commonwealth v. Sample, 321 Pa. Super. 457, 468 A.2d 799 (1983) (allocatur denied); see also Commonwealth v. Miller, 303 Pa. Super. 504, 450 A.2d 40 (1982).

Id., 336 Pa. Superior Ct. at 124-125, 485 A.2d at 461-462.

The evidence in the instant case was clearly sufficient to sustain the verdict of the jury. Therefore, counsel was not ineffective for failing to submit a written motion for a directed verdict. Counsel is not required to perform a useless act or file a meritless motion. Commonwealth v. Albrecht, 510 Pa. 603, 626, 511 A.2d 764, 776 (1986), cert. denied, U.S. , 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Commonwealth v. Stoyko, 504 Pa. 455, 472, 475 A.2d 714, 723 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984); Commonwealth v. Cope, 359 Pa. Super. 140, 144, 518 A.2d 819, 820 (1986). Similarly, counsel was not ineffective for failing to seek a new trial on the ground that the verdict was contrary to the weight of the evidence. Such an averment would also have been lacking in merit.

As a part of its case against appellant, the Commonwealth offered into evidence a gold pocket watch engraved with a locomotive which, at the time of the robbery, had been left behind with the victim. When appellant testified in his own behalf, he denied ownership and any knowledge of the watch. On rebuttal, the Commonwealth offered Officer James Magaw, who testified that on the day following the robbery appellant's parents had inquired regarding a pocket watch. The trial court initially sustained an objection

[ 372 Pa. Super. Page 354]

    to statements made by appellant's parents but allowed the witness to testify that following the parents' inquiry he went in search of a gold pocket watch with a railroad engine engraved upon it. Such a watch, he said, had been retrieved from the victim of the robbery. Subsequently, he testified that appellant's parents had told him that appellant was the owner of the watch.

More specifically, the following is what occurred during the direct examination of Magaw:

Q. Directing your attention to the day following the robbery in this case, or the incident in this case, which would be, I believe June 21st of this past year, 1985, did you become involved with the return of property to the families of Debra Jones and Craig Thomas?

A. Yes, I did.

Q. Did you come into contact with individuals identifying themselves as relatives and indeed parents of Craig Thomas?

A. Yes, I did.

Q. Did -- were -- were you in contact with them for the purpose of returning property?

A. Yes, I was.

Q. As a result of that -- of any conversation with them, what, if anything, did you do?

A. I -- after speaking with those individuals, I contacted Officer Griffin, who was the officer in charge of the case, I received from him a key to a -- to a locker, which -- that's where the evidence was held for the case. I then returned to the family of Debra Jones, a camera, I believe a coat, some cash, mostly -- mostly personal effects, personal items. For Craig Thomas, there was a -- a problem with a pocket watch. The family said that he had with him a pocket watch and that we had taken it . . .

Appellant objected to this line of questioning on grounds that it was irrelevant and constituted hearsay evidence. The trial court sustained the objection in part and disallowed any testimony of the statements made by appellant's

[ 372 Pa. Super. Page 355]

    parents. However, the court allowed Magaw to testify to what he did in response to the information narrated by the parents.

Thus, Officer Magaw testified as follows:

Q. Officer Magaw, as a result of your contact with these individuals, did you ...


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