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COMMONWEALTH PENNSYLVANIA v. FREDERICK BURTON (07/03/80)

decided: July 3, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
FREDERICK BURTON, APPELLANT



No. 444 January Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia, at No. 41 September Term 1975

COUNSEL

Paul R. Gettleman, Zelienople, for appellant.

Robert B. Lawler, Chief, Appeals Division, Neil Kitrosser, Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion.

Author: Eagen

[ 491 Pa. Page 17]

OPINION

On May 31, 1973, the warden and deputy warden of Holmesburg Prison in Philadelphia were slain within the confines of the prison. Appellant, Frederick Burton, and another inmate, Joseph Bowen, were charged with the murders. On June 8, 1976, a jury found Burton guilty of one count of murder of the second degree. Post-verdict motions were filed and denied after a hearing. Burton was then sentenced to a term of life imprisonment.

In this appeal, Burton complains of several alleged instances of ineffective assistance of trial counsel.*fn1 However, we find each of these claims to be without merit.

[ 491 Pa. Page 18]

Where, as here, counsel is claimed to be ineffective for not properly preserving issues in the trial court for appellate review, in evaluating the effectiveness of counsel this Court utilizes a two-step analysis. First, we must determine whether the issue underlying the charge of ineffectiveness is of arguable merit.*fn2 If the underlying issue is found to be of arguable merit,*fn3 our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis designed to effectuate his client's interest. Commonwealth v. Evans, supra; Commonwealth v. Sherard, supra; Commonwealth v. Hubbard, supra.

Presently, Burton contends his trial counsel was ineffective for failing to object to the Commonwealth's impeachment of defense witness Joseph Bowen by questions concerning prior arrests which had not resulted in convictions and questions concerning prior convictions involving non crimen falsi crimes. At trial, the Commonwealth cross-examined Bowen*fn4 with regard to a prior shooting of an elderly couple for which he had been arrested but not convicted*fn5 and his prior convictions for assault with intent to kill and

[ 491 Pa. Page 19]

    murder of a police officer. These questions were received and answered without ...


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