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COMMONWEALTH PENNSYLVANIA v. PAUL GASPER (12/29/78)

decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
PAUL GASPER, APPELLANT



No. 1829 October Term, 1977, Appeal from the Order of May 18, 1977 of the Court of Common Pleas, Criminal Division of Luzerne County at Nos. 1626 and 1627 of 1970.

COUNSEL

Charles P. Gelso, Wilkes-Barre, for appellant.

William J. Perrone, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 262 Pa. Super. Page 144]

Appellant Paul Gasper appeals to this Court from the denial of his Post Conviction Hearing Act petition by the court below.*fn1 The only issue presented is whether appellant's trial counsel was ineffective for failing to file a motion to suppress a statement obtained in violation of Pa.R.Crim.P. 118 (now Pa.R.Crim.P. 130) and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).*fn2 We find

[ 262 Pa. Super. Page 145]

    that trial counsel was ineffective and, accordingly, reverse the order of the lower court and remand this case for a new trial.

In determining whether appellant was denied the effective assistance of counsel, we must make an independent review of the record.

[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 trial counsel's decisions had any reasonable basis. [Footnote omitted.]

Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967). In applying the standards set forth in Commonwealth ex rel. Washington v. Maroney, we must first determine whether the claim which the attorney is charged with not pursuing had some reasonable basis. Only if the claim which was foregone was of arguable merit must we inquire into counsel's reasons for

[ 262 Pa. Super. Page 146]

    not pursuing it. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 ...


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