No. 366 January Term 1978, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia at Nos. 19-20 October Term 1973 under the PCHA.
Norman M. Abrams, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Neil Kitrosser, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Manderino, J., did not participate in the consideration or decision of this case. Nix, J., filed a concurring opinion.
Appellant, Edward Ryder, was convicted of murder of the first degree and conspiracy to murder after a jury trial in Philadelphia. Motions for a new trial and in arrest of judgment were filed and denied. Ryder, represented by trial counsel, filed a direct appeal in this Court, and the judgment of sentence was affirmed.*fn1 Ryder then petitioned for relief under the Post Conviction Hearing Act*fn2 (PCHA). After two evidentiary hearings, at which Ryder was represented by new counsel, the PCHA court denied relief. This appeal is from that order.
In this proceeding, Ryder claims his counsel at trial engaged in conduct which created a disgraceful atmosphere and led to frequent public rebuke by the trial judge, and thus deprived him of a fair trial and rendered trial counsel's assistance ineffective.*fn3 "[C]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 interest." [Emphasis in original.] Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).
Rather than presenting evidence to support the foregoing claim at the PCHA hearing, Ryder relied on the notes of trial testimony and our opinion on direct appeal to establish a "per se" case of ineffective assistance of trial counsel. A careful reading of the notes of testimony reveals that, during the trial, Ryder's counsel did in fact rely upon a strategy of minute, often irrelevant, cross-examination and repeated, often unwarranted, objections. However, we cannot
say it is unreasonable trial strategy to cross-examine witnesses extensively and even repetitiously in the hope contradictions will result or fruitful information will come to light. Objections, even frivolous objections, are often employed by trial counsel to interrupt the flow or lessen the impact of damaging testimony. Moreover, the trial court's admonitions to defense counsel regarding this course of conduct occurred almost exclusively at side-bar conferences and could not, therefore, have prejudiced the jury's evaluation of the testimony.*fn4 Viewed as a whole, the record reveals a vigorous and spirited defense and a trial strategy within the realm of the reasonable.
Ryder next contends the refusal of the PCHA court to grant him a new trial based on after-discovered evidence was an abuse of discretion. At the PCHA hearing, Ryder produced the testimony of Kenneth Covil who was charged with the same murder and who denied Ryder was involved.*fn5
"In order to justify the grant of a new trial on the basis of after-discovered evidence, the evidence must have been discovered after the ...