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COMMONWEALTH PENNSYLVANIA v. BRIAN MOORE (12/11/89)

filed: December 11, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
BRIAN MOORE, APPELLANT



Appeal From Judgment of Sentence Docketed February 24, 1988 In Court of Common Pleas, Criminal Division, Allegheny County, No. 8701480A.

COUNSEL

James R. Wilson, Pittsburgh, for appellant.

Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com.

Cavanaugh, Brosky and Rowley, JJ.

Author: Cavanaugh

[ 389 Pa. Super. Page 476]

This is an appeal from the judgment of sentence following appellant's conviction for rape,*fn1 involuntary deviate sexual intercourse,*fn2 unlawful restraint,*fn3 and corruption of minors,.*fn4 Appellant presents three issues for our review: 1) whether appellant was denied his Sixth Amendment right to counsel at his pre-trial line up; 2) whether the trial court erred by admitting a blue gym bag and its contents into evidence; and 3) whether trial counsel was ineffective for failing to present exculpatory evidence of appellant's facial bumps and scars to the jury. For the reasons that follow, we affirm the judgment of sentence.

This matter involves appellant's sexual assault of a seven-year old child. The jury returned a verdict on September 2, 1987, finding appellant guilty of all counts charged. On September 9, 1987, McDaniel, J. issued an order directing that appellant's attorney, John Elash, file post-trial motions on behalf of appellant within ten days of the date of the

[ 389 Pa. Super. Page 477]

    order. A "boilerplate" motions for new trial and in arrest of judgment were thereafter filed on September 17, 1987. On November 19, 1987, Judge McDaniel ordered defense counsel to file a brief in support of post-trial motions. Appellant filed amended motions for new trial and in arrest of judgment on December 14, 1987 and a brief in support of all post-trial motions. Following argument, appellant's post-trial motions were denied by the lower court on February 24, 1988. Thereafter, appellant was sentenced to ten to twenty years imprisonment on the rape conviction. On conviction of involuntary deviate sexual intercourse, appellant was sentenced to consecutive terms of ten to twenty years imprisonment. On conviction of unlawful restraint and corruption of minors, no sentence was imposed as the sentencing court deemed that these convictions merged with the convictions at counts 1 and 2 for purposes of sentencing.

Following appellant's sentencing, on February 24, 1988, the court appointed the Office of the Public Defender to represent appellant for purposes of appeal. Subsequently, on March 1, 1988, Attorney Elash submitted a petition to withdraw as counsel.

On March 10, 1988, appellant, through counsel, filed a notice of appeal with this court.

The Commonwealth argues in its brief that this court need not address the merits of appellant's issues because they have not been properly preserved for our review, following this court's holding of Commonwealth v. Gregory, 309 Pa. Super. 529, 455 A.2d 1210 (1983), and its progeny. In Gregory, this court held the late filing of post-trial motions under Pa.R.Crim.P. 1123(a) without prior permission from the trial court waives issues for appeal notwithstanding the trial court's subsequently addressing the issue on the merits. However, our Supreme Court's order in Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (filed June 10, 1988) (per curiam) seems to direct us otherwise. Our Supreme Court stated that the Superior Court had erred in its treatment of an issue as waived, where the trial court had considered an amended post-trial

[ 389 Pa. Super. Page 478]

    motion on the merits of the issue without granting permission for the defendant to file nunc pro tunc. See Commonwealth v. Sheaff, 365 Pa. Super. 613, 530 A.2d 480 (1987).*fn5 Given that the issue of waiver is identical to the case at hand, we therefore must construe that our Supreme Court directs us to decide such issues as the ones before us on the merits. Accordingly, we now turn to the pertinent facts.

On April 21, 1985, Tamica Wade, age seven, was sexually assaulted while enroute to a school playground with a group of friends in the City of Pittsburgh. The assailant grabbed the victim by the arm and dragged her behind a building. Tamica Wade did not know her attacker, but she and her cousin, Roneeka Smith, age nine, who was present when Tamica was grabbed, provided police with the following description and information: the actor was a light-skinned black male, approximately six feet tall, muscular build, short hair, deep voice, carrying a gray gym bag containing a large jar of Vaseline. Police had no suspects at that time.

On September 8, 1986, a police officer for the City of Pittsburgh schools attempted to apprehend a light-skinned black male, with short hair, carrying a blue gym bag. The man got away, but the bag was retained. Inside the bag, police found, among other things, an array of pornographic magazines, a jar of Vaseline and a City of Pittsburgh swimming pool ...


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