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COMMONWEALTH v. HILL (03/16/73)

decided: March 16, 1973.

COMMONWEALTH
v.
HILL, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1968, Nos. 1375 and 1376, in case of Commonwealth of Pennsylvania v. Benjamin Hill, Jr.

COUNSEL

Michael M. Baylson, for appellant.

Peter J. Smith and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 450 Pa. Page 478]

Appellant, Benjamin Hill, was charged with murder and tried before a jury in September, 1969. He was found guilty of voluntary manslaughter and received a sentence of imprisonment of not less than four nor more than twelve years. On direct appeal, this Court affirmed. See Commonwealth v. Hill, 444 Pa. 323, 281 A.2d 859 (1971).*fn1 Appellant subsequently filed a petition

[ 450 Pa. Page 479]

    under the Post Conviction Hearing Act. Act of January 25, 1966, P. L. (1965) 1580, §§ 1 et seq. 19 P.S. §§ 1180-1 et seq. After an evidentiary hearing all requested relief was denied. He now appeals to this Court.

Appellant raises on this appeal two related issues. He first contends that he was denied effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the Constitution of the United States because of the many "tactical decisions" made at trial by his attorney which had neither a reasonable basis nor were designed to effectuate his best interests. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). As a corollary to this argument appellant asserts that a supplemental unrequested instruction given by the trial court was an impermissible coercive and prejudicial Allen charge.*fn2 See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896). Although this charge was neither objected to at trial nor raised on direct appeal, appellant contends he should be permitted to raise it here because his trial counsel was ineffective and had no reasonable basis for either failing to object at trial or to argue the issue on direct appeal.*fn3

Addressing ourselves initially to appellant's general claim of ineffective assistance of counsel "[o]ur task

[ 450 Pa. Page 480]

    in cases of this nature . . . encompasses both an independent review of the record, . . . and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives." Commonwealth ex rel. Washington v. Maroney, supra at 604, 235 A.2d at 352. In support of the ineffective assistance claim appellant alleges: (1) that he only met with his attorney once, briefly, prior to trial and there was insufficient time to prepare his defense; (2) that his attorney failed to make a pretrial attempt to suppress a written confession; (3) that when the suppression motion was finally made at trial, it was not handled properly because counsel did not request certain medical records and failed to prepare appellant adequately for his suppression hearing testimony; (4) that he testified in his own behalf only because counsel compelled him to do so; and (5) that counsel did not prepare him adequately for his testimony at the trial itself.

Employing the standards enunciated in Commonwealth ex rel. Washington v. Maroney, supra, ineffective assistance of counsel can only be found if "'[t]he defense actually tendered was so insubstantial in relation to those not offered as to cast doubt upon the hypothesis that trial counsel made a deliberate informed choice.' We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Id. Here, the record reveals that counsel's stewardship of the case, while not perfect by any measure, was certainly "within the permissible range of prudent ...


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