Commonwealth v. Johnson

387 A.2d 834, 479 Pa. 60, 1978 Pa. LEXIS 665

• Court: Supreme Court of Pennsylvania
• Decided: June 2, 1978
• Docket: 164
• Status: Published

Opinions

OPINION

PER CURIAM.

Appellant, Gary Johnson, was found guilty of murder of the first degree. Post-trial motions were filed, argued and denied; thereafter, Johnson was sentenced to life imprisonment and this appeal followed.¹ We affirm the judgment of sentence.

Johnson raises two issues before this Court.² First, it is argued that the trial court erred in allowing the admission of evidence regarding prior criminal conduct on the part of the appellant. Such an issue, however, was not raised in written post-trial motions and accordingly has been waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Second, it is alleged that appellant was denied his constitutional right to effective representation by counsel when his trial lawyer failed to obtain an investigative report pertaining to a prosecution witness, one Anthony Brothers.³ Appellant has failed, however, to establish either that the report does in fact exist or, if it does, that it contains any information which would have been pertinent to the cross-examination of Brothers. Absent this information there is nothing to show ineffectiveness of counsel. On this record the appellant is entitled to no relief.

Judgment of sentence affirmed.

MANDERINO, J., files a dissenting opinion.

1 . We hear this appeal pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.202(1) which places jurisdiction in this Court for the appeal from appellant’s murder conviction.

2 . Additionally, we have reviewed the record in compliance with our statutory obligation, Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187, and find sufficient evidence to support a finding of guilt beyond a reasonable doubt for the offense of murder of the first degree.

3 . Since appellant is represented by new counsel on appeal who has raised the ineffectiveness of prior counsel at the first stage of new counsel’s representation, that issue is properly before this Court. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

The alleged investigative report is said to have possibly contained information which might have supplied a basis for the effective impeachment of the witness.