Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Nov. T., 1967, No. 66, in case of Commonwealth of Pennsylvania v. Edward Lee Heard.
Sallie Ann Radick and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.
Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J.
[ 224 Pa. Super. Page 217]
Appellant Edward Lee Heard was convicted, along with two co-defendants,*fn1 of the 1967 armed robbery of a Dravosburg fur shop. The judgment of sentence was affirmed on direct appeal to this Court.*fn2 This appeal stems from the denial of post-conviction relief following a hearing before Judge Samuel Strauss of the Court of Common Pleas, Criminal Division, of Allegheny County. Appellant here alleges that he was denied effective assistance of counsel at trial. We find no merit to any of his contentions.
We are mindful of our limited scope in reviewing claims of abridgment of the constitutional right to effective representation. No deprivation of this right is to be found "unless appellant's representation was so lacking in competence as to make a mockery of justice. . . . [O]ur 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. The test is not whether other alternatives were more reasonable employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that
[ 224 Pa. Super. Page 218]
trial counsel's decisions had any reasonable basis." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349 (1967). (Emphasis in original.)
Appellant first contends that the failure of trial counsel to object to allegedly-tainted identifications amounted to ineffective representation, citing Washington, id. There, counsel's failure to object to the introduction of the defendant's burglary confession, the sole evidentiary basis on which the Commonwealth's case on the burglary charge rested, was found to have "no reasonable basis".*fn3 The instant case is readily distinguishable. Even assuming, arguendo, that the procedure which yielded the identification in question was overly-suggestive,*fn4 the record presents considerable corroborating evidence to identify appellant.*fn5 In addition, counsel for appellant vigorously cross-examined the identifying witnesses. Under these circumstances, we cannot say this strategy had "no reasonable basis".
Appellant's second basis for claiming he was denied the effective assistance of counsel arises from the fact that both he and one of his co-defendants were represented by the same attorney. Counsel argued for a directed verdict on behalf of the co-defendant alone and obtained a somewhat lighter sentence for that co-defendant. Appellant argues that this is evidence of
[ 224 Pa. Super. Page 219]
counsel's having labored under a conflict of ...