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COMMONWEALTH PENNSYLVANIA v. SAMUEL GAITHER (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL GAITHER, APPELLANT



No. 48 March Term, 1976 Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, at Nos. 760, 761 Criminal Division 1974.

COUNSEL

Arthur K. Dils, Harrisburg, for appellant.

Marion E. MacIntyre, Second Asst. Dist. Atty., Harrisburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins.

Author: Price

[ 244 Pa. Super. Page 56]

On January 14, 1975, the appellant was convicted by a jury of possessing a controlled substance (heroin) with the intent to manufacture or deliver, and carrying a firearm without a license. On this direct appeal, appellant contends that his trial counsel was ineffective.*fn1 We affirm.

The Commonwealth's case consisted of the testimony of three Harrisburg policemen. The policemen testified that as a result of a conversation with an informant, they proceeded to the J. J. Bar on North Third Street. There, they observed appellant's parked automobile. After a search of the area around appellant's car proved fruitless, the officers returned to their patrol car to await appellant. When appellant exited from the bar and approached his automobile, one of the officers hailed him.

The appellant hurried to the front of his car, away from the approaching policemen, with one hand in his pocket. When the police reached the appellant, they found approximately forty-five packets of heroin beneath the front of the automobile. A search of appellant uncovered a .45 caliber automatic pistol.

Appellant's first allegation of ineffectiveness is that his trial counsel failed to cross-examine adequately the Commonwealth's witnesses. However, our review of the record reveals that counsel's cross-examination of the three policemen was lengthy and in depth. He explored all of the circumstances surrounding the arrest, emphasizing that none of the policemen saw appellant drop the drugs. He pointed out some inconsistencies between one officer's testimony at the pre-trial hearing and at trial. Therefore, an allegation of ineffectiveness cannot be

[ 244 Pa. Super. Page 57]

    predicated upon the adequacy of counsel's cross-examination.

The second allegation of ineffectiveness is that counsel failed to move for a mistrial when the district attorney made improper remarks during his closing statement. During the trial, one of the police officers was about to testify to what the informant had told him. This testimony was properly excluded as hearsay. During his closing statement, the district attorney began to tell the jury that they could infer what the informant had said to the police. Appellant objected, the objection was sustained, and the court issued a cautionary instruction.

It is clear that counsel's failure to move for a mistrial was not ineffectiveness. Counsel may have believed that the error was cured by his objection and the court's instruction. We cannot now say that his conclusion was wrong at the time. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Moreover, as the lower court notes in its opinion, a motion for mistrial would properly have been denied. A failure to file a futile ...


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