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COMMONWEALTH PENNSYLVANIA v. JAMES AUSTIN (01/04/80)

filed: January 4, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES AUSTIN, APPELLANT



No. 3074 October Term, 1978, Appeal from Order of the Court of Common Pleas of Montgomery County, Criminal No. 325 April Term, 1972.

COUNSEL

Theodore H. Swan, Abington, for appellant.

John A. Burfete, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Hester, Hoffman and Catania, JJ.*fn* Hester, J., files a dissenting statement.

Author: Hoffman

[ 274 Pa. Super. Page 3]

Appellant contends that trial counsel was ineffective because he: 1) failed adequately to confer with appellant; 2) decided to have appellant testify about his mental state at the time of the crime; and 3) failed to object to the charge of the court. We agree that counsel was ineffective for failing to object to the charge of the court and, therefore, reverse in part and remand for a new trial. We otherwise affirm.

[ 274 Pa. Super. Page 4]

On January 15, 1973, a jury convicted appellant of robbery,*fn1 robbery while armed with an offensive weapon,*fn2 robbery with one or more person or persons,*fn3 burglary,*fn4 conspiracy,*fn5 violation of the Uniform Firearms Act*fn6 and Wantonly Pointing Firearms.*fn7 Appellant filed post-verdict motions but withdrew them before imposition of sentence. On October 12, 1973, the trial court sentenced appellant to concurrent terms of imprisonment of 3 to 10 years for robbery and burglary, and suspended sentence on the other charges. On June 2, 1978, appellant, acting pro se, filed a petition under the Post Conviction Hearing Act.*fn8 The PCHA court appointed counsel, who filed an amended petition alleging ineffective assistance of trial counsel. The PCHA court denied relief, and this appeal followed.

[ 274 Pa. Super. Page 5]

Appellant argues that counsel conferred with him before trial too briefly to permit adequate discussion of possible defenses. At the PCHA hearing, trial counsel testified that he conferred with appellant four times for less than an hour each time. Appellant told counsel that he did not remember the day of the incident, and counsel's interview with appellant's wife produced no leads to any witnesses favorable to the defense. Counsel will not be deemed ineffective if his course of conduct had any reasonable basis designed to promote the interests of his client. E. g., Page 5} Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). A finding of ineffective assistance cannot rest merely on the fact that counsel did not extensively consult with his client. E. g., Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970). Appellant does not identify any evidence, witnesses or defenses counsel should have discovered and presented, nor indicate how any course other than the one counsel pursued would have been more successful. Appellant's bald assertion of ineffective assistance is insufficient to warrant relief. See Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978); Commonwealth v. Bowers, 245 Pa. Super. 214, 369 A.2d 370 (1976).

Appellant also challenges counsel's decision to have him testify. Appellant testified at trial that, before the incident, he had been treated at mental health facilities and that, at the time of the incident, he was an out-patient, receiving treatment, of a mental health clinic. Appellant further testified that he could remember nothing of the day of the incident. Trial counsel testified at the PCHA hearing that his purpose in presenting this testimony was to inform the jurors of appellant's mental state at the time of the incident. At trial, counsel did not enter any further evidence of insanity or diminished capacity and stipulated to a psychiatric report concluding that appellant was mentally competent to stand trial. Appellant attacks counsel's strategy on the ground that because his trial testimony was insufficient to show either insanity or diminished capacity, counsel should have either avoided the area or presented a full defense of mental incapacity. He asserts that his testimony amounted to an admission that he was present at the scene of the crime and that counsel should not have stipulated to the psychiatric report without eliciting testimony distinguishing capacity to stand trial from insanity.

At the PCHA hearing, appellant failed to indicate that any evidence existed to show that, at the time of the crimes, he suffered either diminished capacity or from insanity. Thus, he cannot fault counsel for failing to ...


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