Samuel Kagle, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James J. Wilson, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., concurs in the result.
Appellant, Geary Turner, appeals from the judgment of sentence for murder of the second degree*fn1 following conviction for that offense in a non-jury trial.*fn2 Taking all the evidence in the light most favorable to the Commonwealth,*fn3 the facts are as follows.
On July 7, 1972 at about 3:40 p.m., Geary Turner, a 200 pound, six foot tall young man, became involved in an argument with one Leon Hamilton, Sr., the victim, who was middle-aged, weighed 163 pounds and was 5'9" tall. At trial Mrs. Hamilton, the widow of the victim, testified that, shortly after the argument had ended and her husband, Leon, was passing the Turner home on the way to his parked car, he was physically attacked by Geary Turner. Appellant's brother, William Turner, and the Hamilton's son, Leon, Jr., joined the fight. Both Mrs. Hamilton and her son testified that Leon Hamilton had no weapon at the time of these events. Both also testified that they saw appellant himself strike the victim several times. A neighbor, Mr. Spalding, testified that he saw appellant strike Leon, Sr. directly between the eyes with a baby cart wheel still attached to its axle, a blow which knocked the victim unconscious. After being thus felled, Mr. Hamilton was taken to the hospital, where he died several days later without having regained consciousness.
In his defense appellant presented testimony by his sister and by his brother, William Turner. Both claimed that Leon, Sr., while engaged in fighting Geary Turner, had "pulled" a knife, and it was only then that William Turner had knocked Leon down, causing Leon to hit his head sharply on the curbstone as he fell. In the defense version of the fracas, it was this blow by William which ended the fighting; the victim never regained consciousness after hitting the curb.
Through his appellate counsel, who was not his trial counsel, Turner now argues that he was denied the effective assistance of counsel at trial because of two wrong decisions which his lawyer made. The first decision was to stipulate to the admissibility of a medical report establishing the cause of death as having been injuries to the victim's head; the second was to waive his right to summation at the close of the case.
As we have frequently had occasion to repeat,
"Our task in cases of this nature . . . encompasses an independent review of the record . . . and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives . . . 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. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record . . . [T]he balance tips in favor of a finding of effective assistance as soon as it is determined that ...