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decided: March 20, 1980.


No. 357 January Term 1975, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia at No. 1645 March Term 1974.


Joel Every, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Division, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., filed a dissenting opinion. Flaherty, J., filed a dissenting opinion. Kauffman, J., did not participate in the consideration or decision of this case.

Author: Eagen

[ 488 Pa. Page 314]


Bruce Preston, Jr., appellant, was convicted by a jury in the Court of Common Pleas of Philadelphia of murder of the second degree and a weapons offense. Post-verdict motions were denied. Judgment of sentence of five to sixteen years imprisonment was imposed on the murder conviction, but sentence on the weapons offense was suspended. This appeal from the sentence for murder followed.*fn1

Preston complains the evidence was insufficient to support a conviction for murder of the second degree.

"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all the elements of the crime had been established beyond a reasonable doubt."

Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825 (1975).

So viewed, the evidence established the following:

Karla Anderson burned her hand at her home at about 3:00 p. m. on March 5, 1974. Preston, a brother of Karla and a roomer in the house, and William Anderson, Karla's husband, argued about taking Karla to a hospital for treatment. Finally, as William was about to take Karla to the hospital,

[ 488 Pa. Page 315]

    he told Preston to "get into the car if he wanted to take [Karla] to the hospital." Preston responded: "You better have a gun." William then took Karla to the hospital for treatment.

On the return from the hospital, Karla entered the home first and met Preston and Ernest Anthony (Kareem) Eley. Preston had a gun and said to her: "I'm going to kill your husband." Karla screamed, and William, who was still outside the home, entered the porch of the home where he was confronted by Eley. Eley grabbed William and held his arms behind his back. A struggle ensued during which Preston came out of the home onto the porch. While the struggle continued, Preston fired three shots. One hit Eley in the leg while the others struck William causing wounds which resulted in his death.

Clearly, the foregoing was sufficient to sustain the conviction. But, Preston argues the testimony of the Commonwealth witnesses was too contradictory to support the convictions. In particular, Preston refers to contradictions in the testimony regarding the precise position of a Commonwealth witness, Raymond Anderson, at the time he observed the incident and a contradiction in the evidence between the precise location on the porch where William was shot and where his body was found by police. Additionally, Preston points to an alleged admission of bias based on family relationships on the part of another Commonwealth witness.

The minor contradictions in the evidence and the alleged bias of the witness were for the factfinder to resolve.

"[I]t is the province of the trier of fact to pass upon credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Robson, [461 Pa. 615, 337 A.2d 573 (1975)]; Commonwealth v. Murray, [460 Pa. 605, 334 A.2d 255 (1975)]; Commonwealth v. Smith, 457 Pa. 638, 326 A.2d 60, 61 (1974); Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). The factfinder is free to believe all, part, or none of the evidence. Commonwealth v. Robson, supra; Commonwealth v. Smith, supra."

[ 488 Pa. Page 316]

    counsel and that the court, thereafter, erred in restricting his counsel's closing argument. Defense counsel, in an attempt to show Preston was afraid of a great number of persons who had returned from the hospital with William, drew an analogy to gangs who "have left a trail of misery [in] Philadelphia." The assistant district attorney objected on the basis that the evidence did not support such an argument.

The court thereupon ruled that the assistant district attorney could respond to any misimpressions; that "this is [defense counsel's] impression of what the evidence indicates"; but, that defense counsel should not allude to "other things that happen in Philadelphia." Defense counsel stated: "All right." The court then told counsel he could make analogies, but should not talk about "what happened two weeks ago or two years ago or an unrelated incident."

Preston does not explain how the court's ruling improperly limited argument, and his claim that the assistant district attorney's objection somehow denied him a fair trial is not clear. In any event, counsel did not object or take exception to the court's ruling, and the issue was not raised in post-verdict motions. Accordingly, the issue is waived. Commonwealth v. Johnson, supra.

Next, Preston argues the Commonwealth improperly deprived him of a trial witness. The facts relevant to this are:

Following the return of the verdict by the jury and discussion of appellate rights and related matters, defense counsel asked for a continuation of bail, but the court indicated that it would revoke bail and that one reason for doing so was the apparent absence of a substantial issue to raise on appeal. Defense counsel responded by stating a substantial issue existed for appeal, namely the Commonwealth had deprived the defense of the testimony of Eley, an eyewitness. A discussion resulted which revealed that Eley had been arrested shortly after the killing; that he had been discharged at a preliminary hearing for lack of evidence; that, during the course of jury selection, Eley had been present in court; that, three days before the taking of

[ 488 Pa. Page 318]

    testimony commenced, the Commonwealth caused Eley to be rearrested;*fn2 and, that Eley then allegedly said he would claim his Fifth Amendment right and not testify.

We first note that this issue was not brought to the attention of the court until after the verdict was rendered by the jury. Moreover, the record does not establish whether Eley had, prior to rearrest, intended to testify or the nature of the testimony he allegedly would have given; whether the rearrest caused him to make himself unavailable; whether the rearrest was in good faith; or, whether, even after being rearrested, Eley intended to invoke his Fifth Amendment privilege. Counsel cannot sit idly by in the hopes of attaining a favorable verdict and, when such is not attained, be allowed to bring alleged errors or improprieties to the attention of the court which could have been asserted during the trial. Because the matter was not brought to the attention of the court prior to the verdict being entered, the court was deprived of an opportunity to avoid any error. Accordingly, the issue is waived. Cf. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Finally, Preston argues trial counsel was ineffective (1) for failing to object to or seek a colloquy to determine the content of the conversation between the court officer and juror previously discussed, and (2) for failing to object to and raise as an issue in post-verdict motions the assistant district attorney's "conduct during summation for the defense," namely the objection to defense counsel's reference to gangs, supra.

The last-mentioned claim of ineffectiveness need not detain us. Trial counsel may properly object to a summation not warranted by the evidence, and this is such a case. The assistant district attorney was well within his rights, and Preston's counsel was under no obligation to press a meritless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). However, the failure of counsel to

[ 488 Pa. Page 319]

    ascertain or ask the court to inquire into and explore the nature and content of the conversation of the juror and the court officer is a horse of a different color. From the record before us, it is impossible to ascertain the content of the conversation or counsel's reasons, other than his knowledge of the officer's experience, for failing to pursue the matter further than he did.

If the conversation prejudiced Preston's right to a fair trial in any manner, counsel's inaction would constitute ineffectiveness absent good cause for his inaction. On the other hand, if the conversation was innocuous, counsel's inaction would not constitute ineffectiveness since he merely waived a claim devoid of merit. Cf. Commonwealth v. Hubbard, supra.

Accordingly, we will remand the record for an evidentiary, counseled hearing and a determination by the trial court if trial counsel was ineffective. We also direct the trial court, unless the issues are waived, to determine if, in passing sentence, the sentencing court denied Preston's right of due process or right to make a statement.*fn3 Following the trial court's determination, either party, if aggrieved, may appeal.

It is so ordered.

[ 488 Pa. Page 320]

FLAHERTY, Justice, dissenting.

I must dissent. By necessity there is contact between a court officer and jurors during a trial, as the court officer is responsible for the jury's accommodations and comfort, and is the physical connection between the Court and the individual jurors. Conversation, which would include the exchange of pleasantries, is commonplace, necessary and even desirable. To require an inquiry into each instance of conversation between a juror and a court officer is unrealistically burdensome to the trial process.

Accordingly, I dissent.

LARSEN, Justice, dissenting.

I dissent. The judgment of sentence should be affirmed. Jurors do not take "vows of silence." They are permitted to talk to their friends, family, other jurors, court officers, etc. They are only prohibited from speaking to persons who are involved in the case in which they are participating. Of course, jurors are not to discuss the case with anyone until the official deliberations begin.

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