394 A.2d 1043 | Pa. Super. Ct. | 1978
Appeal is taken from the Order of the lower court denying relief asked by appellant in his petition filed pursuant to the Post Conviction Hearing Act (P.C.H.A.) Act of 1966, Jan. 25, P.L. 1580, 19 P.S. § 1180-1 et seq. Procedurally the case began with indictments charging possession of instruments of crime generally and burglary, et alia. “Crimes Code”, Act of 1972, Dec. 6, P.L. 1482, 18 Pa.C.S. §§ 907 and 3501. Represented by Kalvin Kahn, Esq., defendant was tried by a jury, Judge A. A. GUARINO, presiding, and found guilty of the enumerated charges. Trial counsel filed a motion for new trial, alleging nothing more than the so called “boiler plate”. Post-trial relief was denied, and defendant was sentenced to concurrent terms of imprisonment, one to five years on the possession of instruments of crime conviction and three to six years on the burglary conviction. Although no additional post-trial motions had been filed, the opinion of Judge GUARINO makes evident that the lower court considered questions of insufficient evidence and alleged
Appellant now argues, in part, that the evidence was insufficient to support the verdict and that the lower court erred in holding, after the Bighum, supra, hearing, that' evidence of certain prior convictions could be introduced for impeachment purposes, if the defendant were to take the witness stand. These issues were raised post-trial and on direct appeal, and were finally litigated. P.C.H.A., supra, 19 P.S. § 1180-4(a).
Secondly appellant argues that it was an abuse of discretion by the trial court to have ruled inadmissible a statement given by him to the arresting officers in which Tucker gave an explanation as to why he was, on the night in question, discovered at a skylight on the roof of a building containing the bar he was found to have burglarized, tools of the crime found on his person and in the vestibule of the stairway leading from street to roof. The issue could have been raised post-trial and on direct appeal, as facts surrounding it were fully developed at trial and are contained in the record. It was not so raised, and is waived for purposes of P.C.HA. relief. Act, supra, 19 P.S. § 1180-4(b).
Appellant contends that his trial counsel was ineffective for failing at trial to have objected to certain testimony by the arresting officer. Having been represented by appellate counsel different from trial counsel, this issue should have been raised in direct appeal. It is therefore waived. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
Lastly appellant argues that the commencement of his sentences rendered by Judge GUARINO has been improperly computed. This was made a part of the P.C.H.A. hearing, the court’s pointing out that the sentences in the instant case were to begin on October 15, 1975, the date on which, the lower court stated, defendant was paroled from an unrelated sentence. Judge GUARINO’S sentences were concurrent one with the other, and no date for commencement was stated. Thus they are to begin when they were imposed, viz., January 30, 1975. Pa.R.Crim.P. Rule 1406. It was error for the P.C.H.A. court to hold that they commenced on October 15, 1975. We order the date of com
Affirmed in part and reversed in part.