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COMMONWEALTH PENNSYLVANIA v. JAY ARTHUR (03/20/80)

decided: March 20, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JAY ARTHUR, APPELLANT



No. 137 January Term, 1978, Appeal from the Order of the Superior Court at No. 1102 October Term, 1977, affirming the Court of Common Pleas of Montgomery County, Dated February 7, 1977 at No. 3592 October Term, 1974.

COUNSEL

Arthur J. King, Ronald F. O'Driscoll, Jr., Asst. Public Defenders, for appellant.

Ronald T. Williamson, Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Nix, J., concurred in the result. Roberts, J., filed a dissenting opinion.

Author: Larsen

[ 488 Pa. Page 264]

OPINION OF THE COURT

Appellant was convicted of burglary, robbery, and conspiracy to commit burglary for his participation in the May 16, 1974 burglary and robbery of a law office. [During the commission of these crimes, a secretary in the law office (hereinafter referred to as the "victim") was injured.] Post-verdict motions were denied and appellant appealed to the Superior Court, arguing that he received ineffective assistance of trial counsel. The Superior Court remanded the case "to the lower court for an evidentiary hearing on appellant's claim of ineffective assistance of trial counsel." An evidentiary hearing was held and the lower court rejected appellant's claim of ineffective assistance of trial counsel. Appellant re-appealed to the Superior Court, which affirmed the lower court in a per curiam opinion. This appeal followed.

Appellant's first contention is that trial counsel was ineffective in failing to move for the suppression of (1) the victim's alleged photograph identification and (2) the victim's subsequent identifications of appellant. Appellant argues that trial counsel should have moved for the suppression of the alleged photographic identification because it was allegedly made without the presence of counsel while he (appellant) was under arrest and because of "the likelihood of irreparable suggestivity inherent in such identifications." Appellant argues that trial counsel should have moved for the suppression of the victim's subsequent identifications of appellant because they were "tainted" by the alleged photographic identification.

[ 488 Pa. Page 265]

This Court held in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605-06, 235 A.2d 349, 352-53 (1967) that:

     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]

"As a corollary, counsel is not ineffective for failing to raise baseless or frivolous issues." Commonwealth v. Wilson, 482 Pa. 350, 353, 393 A.2d 1141, 1143 (1978).

At trial, the victim testified that during her hospitalization for treatment of the injuries incurred during the crimes in question, Police Officer Alfred M. Gillette visited her and showed her "some photographs . . . to identify." ...


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