Appeal from the PCHA of February 26, 1987, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 8207-1248.
Earl G. Kauffman, Philadelphia, for appellant.
Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Com., appellee.
Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Beck, Kelly, Popovich and Melinson, JJ. Wieand, J., concurs in the result.
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Appellant was found guilty by a jury of robbery as a felony in the first degree. He was then sentenced to six to
[ 376 Pa. Super. Page 457]
fifteen years' imprisonment. On direct appeal, this Court affirmed appellant's judgment of sentence. Appellant subsequently filed a petition for relief under the Post Conviction Hearing Act. 42 Pa.Cons.Stat.Ann. § 9541 et seq. (Purdon 1982). The petition was denied and this appeal followed.
The evidence adduced at trial establishes that appellant entered a McDonald's Restaurant in the early morning hours and jumped over the service counter. He announced that "this is a robbery" and proceeded to push a cashier. As he was doing so, appellant held a pointed object under his shirt with one hand. The cashier and a co-worker both testified that they believed that the object which appellant was pointing was a gun. With his free hand, appellant began to take money from the cash register. However, when appellant began to use both hands to retrieve the money, he exposed the contents of the hand which he had kept under his shirt. He was holding, not a gun, but a six-inch door lock. Upon realizing that appellant did not possess a gun, one of the employees tried to stop appellant, but appellant escaped.
Appellant's sole claim is that trial counsel was ineffective for failing to request a jury instruction on the lesser offense of robbery as a second degree felony under 18 Pa.Cons.Stat.Ann. § 3701(a)(1)(iv) (Purdon 1983). When reviewing allegations of ineffectiveness of counsel, we must first determine if the underlying issue is one of arguable merit. Commonwealth ex. rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Thomas, 363 Pa. Super. 348, 352, 526 A.2d 380, 381 (1987). Here, the evidence in the record would not have supported the second degree robbery charge. Therefore, appellant was not entitled to have the jury instructed on the second degree robbery charge. Counsel is not ineffective for failing to assert a baseless claim. Commonwealth v. Nelson, 514 Pa. 262, 274-5, 523 A.2d 728, 735 (1987). Therefore, we affirm the order denying appellant's petition for post-conviction relief.
[ 376 Pa. Super. Page 458]
Appellant was charged with, and the trial court instructed the jury on, robbery as a felony of the first degree under 18 Pa.Cons.Stat.Ann. § 3701 (Purdon 1983). ...