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05/16/97 COMMONWEALTH PENNSYLVANIA VS THEODORE

May 16, 1997

COMMONWEALTH OF PENNSYLVANIA VS THEODORE SAVAGE, APPELLANT


Appeal from the Judgment of Sentence July 16, 1996 in the Court of Common Pleas of Luzerne County, Criminal No. 1633 of 1992. Before BROMINSKI, J.

Before: Cirillo, P.j.e., and Beck and Johnson, JJ. Opinion BY Cirillo, P.j.e. Concurring Statement BY Beck, J.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

FILED MAY 16 1997

Theodore Savage appeals from a judgment of sentence entered in the Court of Common Pleas of Luzerne County after his conviction for robbery and theft by unlawful taking or Disposition. We affirm the judgment of sentence and remand for an evidentiary hearing.

A review of the evidence adduced at trial reveals the following facts. Savage and his wife, Sarah Savage, decided to rob Smolok's Market, a small grocery store in Plymouth Borough, Luzerne County. Sarah robbed the store, and appellant Savage drove the getaway car. Sarah's testimony revealed that her husband was looking for a place to rob on the day in question, and that the couple drove around in a brown and yellow Chrysler Cordoba looking for a store to target. The pair decided on Smolok's because "they" didn't know Sarah there. Sarah testified that her husband "told me I had to do it. . . . He just told me I had to do it, either that or I had to go kill somebody down on the Square." Savage provided Sarah with the gun. She further stated that she did not act alone and that her husband helped her plan the robbery.

At approximately 8:30 p.m. on May 4, 1992, Sarah, armed with a gun, demanded money from Smolok's store clerk Robert Warman. Warman handed Sarah between $300.00 and $400.00, along with food stamps. According to Warman, Sarah fled the store and entered the passenger side of a dark-colored Cordoba, which left the market at a high rate of speed. Warman was unable to see who was driving the vehicle. Savage's car was stopped twenty-five minutes after the robbery, as it matched a description put out by police. Savage was in the driver's seat and his wife Sarah was the passenger. Officer Daniel Neilan testified that after taking the couple into custody, a search of the vehicle revealed a firearm and a purse, which were found under the passenger seat. The purse contained $357.00 in cash and $31.00 in food stamps.

At the close of the jury trial, presided over by the Honorable Bernard Brominski, Savage was convicted of robbery and theft by unlawful taking or Disposition. Trial counsel filed post-trial motions, and was later granted leave to withdraw. Present counsel filed supplemental post-verdict motions, upon which the trial court heard oral argument. The motions were denied and Savage was sentenced to five to ten years imprisonment. This appeal followed.

Savage raises the following issues for our consideration:

(1) Whether trial counsel's failure to file a motion in limine or otherwise object to testimony offered by wife of Defendant in the nature of confidential communications pursuant to 42 Pa.C.S.A. § 5914 constitutes ineffective assistance of counsel?

(2) Whether trial counsel's failure to object to the Commonwealth's reference to Defendant's silence while in police custody constitutes ineffective assistance of counsel?

(3) Whether trial counsel's failure to request a curative instruction concerning improper remarks made by counsel for the Commonwealth during closing arguments constitutes ineffective assistance of counsel?

(4) Whether trial counsel's failure to render an opening statement to the jury during trial constitutes ineffective assistance of counsel?

(5) Whether trial counsel's failure to object and request a curative instruction with regard to evidence offered by the Commonwealth in the nature of prior wrongs or bad acts of ...


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