No. 81 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at No. 1426 December Sessions, 1970
Allan M. Dabrow, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven Goldblatt, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., files a dissenting opinion in which Roberts, J., joins.
Appellant, Michael Wilson, was convicted by a jury of murder of the first degree for the shooting death of Gregory Davis. Post-verdict motions were denied and a direct appeal was filed to this court where we affirmed by an equally-divided court. Commonwealth v. Wilson, 463 Pa. 1, 329 A.2d 881 (1974). Counsel told appellant he would file a petition for reargument; however, no such petition was filed within the required time.
Appellant subsequently filed a pro se petition under the Post Conviction Hearing Act (PCHA).*fn1 Counsel was appointed and an amended PCHA petition was filed. Following a hearing, the court below granted appellant permission to file a petition for reargument nunc pro tunc,*fn2 but denied all other requested relief. Appellant now appeals from that portion of the order denying relief.
Appellant claims that he has been denied his constitutional right to effective assistance of counsel. For reasons hereinafter stated, we do not believe appellant is entitled to relief.
In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352 (1967), we stated:
". . . 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. Although weigh the alternatives we must, the
balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis." (Emphasis in original.)
As a corollary, counsel is not ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). It is with this standard in mind that we must review appellant's allegations of ineffective assistance of counsel.
Appellant first claims that trial counsel was ineffective for failing to object to portions of the prosecutor's closing remarks, which appellant believed to be inflammatory. The comments concern appellant's failure to take the stand and alleged expressions of the prosecutor's personal beliefs. We believe, however, that appellant failed to preserve this question for appellate review.
In his amended PCHA petition, appellant made a general allegation that trial counsel was ineffective for failing "to raise and preserve on appeal issues of inflammatory summation and other prosecution misconduct." At the hearing, appellant's counsel made no specific argument on this claim. When counsel filed a brief in support of the PCHA petition eleven days after the hearing, specific instances of alleged inflammatory ...