No. 2302 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Information Nos. 1871-1876 of the March Session, 1976.
Raymond E. Kumor, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, and Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.
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On June 7, 1976, appellant, Allen Ramsey, a/k/a Allen Thomas, was found guilty in a non-jury trial of five counts of robbery and one count of conspiracy. On this direct appeal, appellant raises various questions of ineffectiveness of his trial counsel. Because we find his contentions without merit, we affirm the judgment of sentence.
The facts may be briefly stated. On March 5, 1976, at 9:10 p. m., three men, two brandishing firearms, entered Cal & Nell's Bar at 15th and Mellon Streets in Philadelphia. Three customers and an employee were ordered to lie on the floor and surrender their valuables, consisting mainly of cash. Another customer entered the bar in the midst of the robbery and suffered the same fate. One of the perpetrators grabbed a TV set from the counter and then all three robbers fled, warning the five victims to "(s)tay on the floor for five minutes." N.T. 63. An employee, Betty Howard, had activated a silent alarm at the inception of the incident. Police Officer Manuel Ruiz, responding to the alarm, arrived at the bar at 9:18 p. m. and was directed by a witness to a 1964 White Ford containing three black males, parked 100 feet from the bar. As Officer Ruiz approached the car, it drove away. A short chase around the block ensued. The Ford stopped, and appellant, sitting in the driver's seat, was arrested. He was placed in a police wagon and transported the short distance back to the bar where he was identified by the complainants as one of the robbers. Three victims also identified appellant at trial, as did one Harris who was sitting across the street during the robbery and saw appellant exit the bar carrying a TV set. The car in which appellant was arrested was found to contain wallets and other articles later identified by the victims as taken from them during the robbery.
The only item contained in appellant's post-trial motion was insufficiency of the evidence. Hence, all other claims are waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). On this appeal, however, appellant, now
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represented by new counsel,*fn1 contends his trial counsel was so ineffective as to require a new trial, or, in the alternative, a remand for filing of post-trial motions nunc pro tunc. Our courts have developed a two-step analysis in reviewing allegations of ineffective counsel. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). First, the court must decide whether the claim which counsel is charged with not pursuing, has "arguable merit." If it does not, our inquiry ends there.*fn2 If the claim does possess such merit, we must then determine whether counsel's action or inaction had any reasonable basis. If the state of the record does not permit resolution of this question we will remand for an evidentiary hearing.*fn3 Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). If the court can resolve this second question on the record, we will grant appropriate relief.*fn4 Against this procedural backdrop, we do well to bear in mind the general principles enunciated by our Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 352 (1967): "We cannot emphasize strongly
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enough . . . 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 . . . (A) finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized." (Emphasis in original). With these caveats in mind, we now turn to appellant's allegations.
1. Counsel was ineffective in failing to make appropriate and necessary objections at trial.
A. Failure to object to hearsay testimony.
In three instances, counsel did not object to certain hearsay testimony. The first involved the testimony of Officer Murphy, one of the ...