Nos. 573 and 598 January Term 1977, Appeal from the PCHA Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section at Nos. 1766 and 1767 October Term 1972
Joseph C. Mossop, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a concurring opinion in which Nix, J., joins. Manderino, J., filed a dissenting opinion. Pomeroy, former J., did not participate in the decision of this case.
On April 5, 1973, George Betrand was convicted by a jury in Philadelphia of murder of the first degree, aggravated robbery, conspiracy and violating The Uniform Firearms Act. Post-verdict motions filed by trial counsel seeking arrest of judgment or a new trial were denied, and judgment of sentence of life imprisonment was imposed on the murder conviction. A concurrent term of not less than ten years nor more than twenty years imprisonment was imposed on the aggravated robbery conviction. On appeal to this Court, we affirmed the judgments of sentence. Commonwealth v. Betrand, 459 Pa. 599, 330 A.2d 864 (1975).
On October 7, 1976, Betrand filed a petition for relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1, et seq., 19 P.S. 1180-1 et seq. (Supp.1978-79) [hereinafter: PCHA]. Following a hearing, the relief requested was denied. This appeal is from that order.*fn1
Betrand alleges that the PCHA court erred in denying relief for the following reasons: (1) he was denied his constitutional right to representation by competent counsel at trial and on direct appeal;*fn2 and, (2) he was deprived of a right not recognized at trial, but which requires retrospective application. In support of his allegation that counsel was ineffective, Betrand advances four distinct claims. However, we need only discuss the merits of three of these claims.*fn3
In evaluating the effectiveness of counsel, we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):
"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. 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.]
Accord Commonwealth v. Sherard, supra; Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Little, 468 Pa. 13, 359 A.2d 78 (1976). However, before inquiring into the basis for counsel's failure to raise certain issues at trial, we must determine if these issues are of arguable merit. Commonwealth v. Sherard, supra; Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977); Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If we conclude the issues are of arguable merit, then and only then do we proceed to inquire whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Martin, supra; Commonwealth v. Hubbard, supra.
Betrand's initial claim is that counsel was ineffective for failing to object to the following remark by the assistant district attorney during his opening statement to the jury:
"Mr. Betrand plead guilty and he just says to the Commonwealth, 'Go ahead and prove your case.' That's what we have to do and that's what we're all about."*fn4
Contrary to the prosecutor's statement, Betrand, in fact, plead "not guilty" to each indictment.
In order to obtain judicial relief, the language of the prosecuting officer in the opening statement must be such that its unavoidable effect is to so prejudice the jury against the accused and prevent the finding of a true verdict. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). Instantly, the prosecutor's inadvertence in stating Betrand "plead guilty" was not repeated at any time during the remainder of the trial. Compare ...