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filed: December 28, 1979.


Nos. 248 and 249 Special Transfer Docket, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, dated April 3, 1978. at Nos. 169 and 172 June Term, 1977


Dennis J. Cogan, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: O'brien

[ 274 Pa. Super. Page 84]

Appellant, Ronald Kesting, was convicted by a jury of murder of the first degree and of robbery. Post-verdict motions were denied and appellant was sentenced to life imprisonment on the murder charge and to a term of ten to twenty years' imprisonment for the robbery conviction, to be served consecutively to the life sentence.

The instant appeal arose out of the January 18, 1977, slaying of Barbara Hughes in Philadelphia. Appellant, the victim, and another woman, Judith Bristol, became acquaintances in 1976 in Napa, California. The three travelled across the country in decedent's automobile to Philadelphia, where, in January of 1977, they together occupied a room in the Penn Center Inn. On January 18, 1977, Ms. Hughes' body was discovered in the hotel room, a victim of strangulation. Appellant and Ms. Bristol fled in the victim's automobile prior to the discovery of the body of Ms. Hughes, and were ultimately apprehended by federal authorities in Honolulu, Hawaii.

From denial of his post-verdict motions and imposition of judgment of sentence this appeal followed, raising eight assignments of error.

[ 274 Pa. Super. Page 85]

First, appellant asserts the trial court erred in refusing to suppress an inculpatory statement. Appellant argues the statement should have been suppressed as the product of ineffective assistance of counsel. The facts germane to this claim of error are as follows: On January 29, 1977, appellant was arrested by federal agents in Honolulu, Hawaii, and charged with the commission of an unrelated offense. On February 1, 1977, while appellant was in federal custody in Hawaii, Honolulu counsel, Hyman Greenstein, Esquire, was appointed to represent him. Subsequently two representatives each of the Philadelphia Police and District Attorney's office travelled to Honolulu, intending to interrogate appellant. Upon arriving in Honolulu, one of the Philadelphia Assistant District Attorneys contacted Attorney Greenstein and expressed his desire to interrogate appellant. Greenstein telephoned appellant and informed him that the Philadelphia authorities wished to interrogate him; further, Greenstein told appellant that while the decision to submit to interrogation was his, appellant's, alone to make, nevertheless he, Greenstein, would recommend that appellant co-operate.

On February 4, 1977, Detective Sheldon Zucker of the Philadelphia Police Homicide Division conducted an interrogation of appellant which resulted in the inculpatory statement here at issue. Attorney Greenstein was not present at the interrogation. Appellant now argues that Attorney Greenstein provided ineffective assistance of counsel in two particulars: in advising cooperation with the Philadelphia authorities, and in not being present at the interrogation. As a result of this alleged ineffective representation, appellant argues his statement should be suppressed.

It is by now axiomatic that the standard by which counsel's effectiveness is gauged is whether the "course chosen by counsel had some reasonable basis designed to effectuate his client's interest." Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). It is however, also well settled that a finding of effective representation "depends as an initial matter, not on whether a court would

[ 274 Pa. Super. Page 86]

    retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases." Commonwealth v. Marsh, 448 Pa. 292, 297, 293 A.2d 57, 61 (1972), quoting McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

Instantly, appellant's Honolulu counsel knew appellant had twice given statements to the federal authorities exculpating himself regarding the Hughes killing and insisting Judith Bristol had in fact committed the crime. Under those circumstances, we cannot find that an attorney's advice to cooperate with the police, so long as that advice makes clear that the decision ultimately lies with the accused, is, without more, ineffective assistance of counsel.

Moreover, attorney Greenstein's absence from the interrogation need not, of itself, amount to ineffectiveness. The right to have counsel present during interrogation is one which an accused may waive. Commonwealth v. Peoples, 483 Pa. 152, 394 A.2d 956 (1978). An inculpatory statement will not be suppressed even though obtained in the absence of counsel, where an accused's constitutional rights have been fully explained and knowingly, voluntarily and intelligently waived. Commonwealth v. O'Bryant, 479 Pa. 534, 388 A.2d 1059 (1978).

Appellant has not asserted below, nor does he claim here, that he was not advised of his Miranda rights or that his waiver of those rights was not knowing, voluntary and intelligent. The record, moreover, indicates that he was in fact so advised, and that such a waiver was made. We have not heretofore held that in these circumstances the absence of counsel constitutes ineffectiveness such as would require suppression of any statement made. We will not so hold instantly; appellant's claim is without merit.

Appellant's second assignment of error urges that the trial court erred in denying his motion to dismiss with prejudice the charges pending against him as the appropriate remedy for ...

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