Commonwealth v. Thorne

Opinion by Watkins, P. J., On April 17,1972, at about 11:30 P.M., the proprietor of a restaurant closed his shop but remained in the store awaiting the arrival of a regular customer who had called in an order. When the customer arrived, the owner of the store unlocked the door to let him in. As he entered, Michael Thorne, the appellant, forced his way in at gun point and ordered Giangreco to back up to the middle of the store. He then ordered him to open the cash register and scoop up the money while holding Giangreco and Waltz, the customer, and two other employees at bay with his gun. Giangreco, Waltz and an employee, Gary Goldner, testified to these facts and to the identity of the robber. On May 25, 1972, Giangreco and Waltz attended a line-up in which the appellant (who had been arrested on another charge and was used as a filler) was exhibited but they failed to identify him. As a result of information obtained by police, the appellant was arrested while in custody and charged with the current crimes. He was told of the charges, advised of his rights and, after waiving them, gave a statement to the police. On June 13, 1972, Giangreco and Waltz attended a preliminary hearing and identified him as the robber as soon as he entered the room. The appellant moved to suppress the identification evidence of Giangreco and Waltz and the statement given to the police by the appellant. But, after the case was listed for trial, and continued several times, counsel for the appellant, the public defender, filed a memorandum with the court which is a part of the record and withdrew the petition for suppression. He believed the statement to be exculpatory. When th§ case was called to trial, the trial attorney for the appellant moved to reinstate the petition after some members of the jury were chosen and the rest of the panel awaiting call. The petition was refused by the court [96] below because the appellant had ample opportunity to do so prior to trial and no good could be accomplished by now having a collateral hearing at that stage of the proceeding. It should be here noted that the burglary took place on April 17, 1972; that the preliminary hearing took place on June 13, 1972, and the case was first listed for trial on August 29, 1972. The trial of the case began on January 15, 1973 when the motion to reinstate was made. Appellant contends that this was error with which we cannot agree. The eye-witness had ample opportunity to observe the appellant at the scene of the crime, gave an adequate and accurate description to the police and were able to immediately identify him at the preliminary hearing under circumstances which in no way suggested appellant was the perpetrator of the crime. A third eyewitness, as well as these two, at trial identified him without any opportunity to see him since the night of the crime. The witnesses gave several reasons for their fail-, ure to identify him at the line-up where he appeared as a filler. Under all these circumstances, the court did not abuse its discretion in refusing to reopen the petition to suppress as to identification or in considering the matter waived under Pennsylvania Rules of Criminal Procedure, Rule 323 (b). Commonwealth v. Brown, 226 Pa. Superior Ct. 30, 312 A.2d 428 (1973). Appellant further urges that his statement given to the police should have been suppressed because it was given at a time when he was incarcerated on another charge, prior to preliminary hearing, after all warnings were given but not in the presence of counsel. This was not a critical stage in the proceedings under Commonwealth ex rel. Johnson v. Rundle, 440 Pa. 485, 270 A. 2d 183(1970) and no abuse of discretion in its admission was shown. Appellant contends he was denied effective assistance of counsel because of the withdrawal of the petition to [97] suppress. This is without merit in that the memorandum filed of record indicates a reasonable trial strategy. Commonwealth v. Hill, 427 Pa. 614, 235 A.2d 347 (1967). This question was not raised in the court below and is not properly raised before this Court on direct appeal. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). The appellant also contends that it was error for the court to refuse a point for charge in Commonwealth’s failure to call an eye-witness. There were four people in the shop at the time of the incident. The names of these witnesses were supplied to the appellant at trial. Three were called by the Commonwealth and the District Attorney informed the appellant that the fourth witness would not be called but supplied his name and address. Appellant’s counsel got in touch with the witness the next day and informed the court that he could not identify or describe the hold-up man. However, the appellant failed to call him so that it is impossible to tell what his testimony would have been. The Commonwealth considered his testimony was surplusage. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1970). This is the kind of case where an obviously guilty defendant tries to take advantage of the law itself to delay justice taking its proper course. It is the kind of case about which the media and the public generally are making an outcry in the face of the mounting crime rate. It was an armed robbery in which a number of people were held at bay at gun point. Giangreco, the proprietor of the restaurant, Waltz and Goldner, identified the robber. In the face of this record, it would be clearly unreasonable to remand this case for further action by an already overburdened lower court on the ground of inadequate counsel. It is so easy for new counsel in seeking justification for an appeal to castigate trial counsel as inadequate when he wasn’t faced with the problems that confronted trial counsel when decisions had to be made. This is especially true when the court below had before it in writing the reasons on which counsel based his [98] trial strategy. It should also be pointed out that the Defender Association represented the defendant from the beginning although one counsel appeared at the suppression hearing, another at trial, and a third on appeal. So we have the peculiar situation of one counsel of the Defender’s Association accusing another counsel of the same association of incompetency. For all of these reasons we affirm.