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submitted: September 25, 1989.


Appeal from Post Conviction Relief Act of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 8613294A.


Clayton S. Morrow, McKeesport, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Com., appellee.

Brosky, Wieand and Melinson, JJ.

Author: Wieand

[ 389 Pa. Super. Page 491]

Ronald Williams was found guilty by a jury of theft and criminal conspiracy*fn1 in connection with the taking of a wallet from a woman while she was boarding a bus outside Kaufman's Department Store in downtown Pittsburgh. A female accomplice who was with Williams fled the scene and has neither been apprehended nor identified. Following the verdict, defense counsel filed a post-trial motion alleging that the evidence was insufficient to support the verdict. While this was pending, Williams filed pro se a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. § 9541 et seq., repealed by the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., effective April 13, 1988, but this was dismissed by the trial court as premature. After the post-trial motion had been argued, it was also dismissed by the trial court, and Williams was then sentenced to serve concurrent terms of imprisonment for not less than two and one-half (2 1/2) years nor more than five (5) years. A motion to modify sentence was denied, and appeals were filed pro se by Williams and also by his attorney.*fn2 While his case was on appeal, Williams filed pro se another PCHA petition. He then discontinued the consolidated appeal which was pending in the Superior Court. New counsel was thereafter appointed to represent Williams in the PCHA proceedings, and counsel caused an amended petition to be filed.*fn3 Following

[ 389 Pa. Super. Page 492]

    an evidentiary hearing, however, post conviction relief was denied. Williams appealed. He argues: (1) the evidence was insufficient to support the verdict; (2) the trial court erred when it refused to strike the testimony of the Commonwealth's expert witness; (3) the trial court erroneously sentenced him for a misdemeanor of the first degree and incorrectly computed the offense gravity score therefor; and (4) trial counsel rendered assistance which was constitutionally ineffective. We find no merit in these contentions and affirm the order denying post conviction relief.

Appellant's challenge to the sufficiency of the evidence was not properly raised in this collateral attack on his conviction. The issue had been raised in a post-trial motion and had been decided adversely to appellant by the trial court. Although appellant filed a direct appeal in the Superior Court, he caused the appeal to be discontinued before the same could be argued and decided. The PCHA court found this to be a voluntary act. The issue regarding the sufficiency of the evidence, therefore, was finally litigated and could not be renewed in a collateral proceeding under the Post Conviction Hearing Act. See: 42 Pa.C.S. §§ 9543(4) and 9544(a)(1), now repealed. See also: Commonwealth v. Frazier, 455 Pa. 162, 314 A.2d 16 (1974); Commonwealth v. DeSantis, 234 Pa. Super. 67, 335 A.2d 761 (1975). An issue has been finally litigated if "[i]t has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to appeal the trial court's ruling." 42 Pa.C.S. § 9544(a)(1), now repealed.

Appellant argues that he did not voluntarily discontinue his direct appeal because his decision to discontinue the appeal was prompted by a belief that a PCHA petition would receive faster consideration than a direct appeal to the Superior Court. The record discloses, however, that appellant had been fully and correctly informed

[ 389 Pa. Super. Page 493]

    regarding his appellate rights. Indeed, the record is clear that he even disregarded the advice of trial counsel in discontinuing his appeal. Appellant, even though represented by counsel, insisted on filing numerous pro se motions and petitions. After he rejected the advice of the trial court and of his own counsel and discontinued his direct appeal, he will not be heard to say that he didn't understand the consequences of his act.*fn4

At trial, Detective Normand Leonard of the Pittsburgh Police Department was called by the Commonwealth to testify as an expert witness concerning the general methods by which pickpockets operate. After the Commonwealth had rested its case, defense counsel complained that the Commonwealth had failed to disclose the existence of the expert witness during pre-trial discovery in violation of the mandatory discovery requirements of Pa.R.Crim.P. 305 B(1)(e). Because the Commonwealth had not discussed Leonard's testimony with him until the morning of trial, the court held that there had not been a willful violation of the discovery rule. Nevertheless, the court offered to grant a continuance to the defense ...

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