No. 25 MAY TERM, 1979, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division of the County of York, Pennsylvania at No. 1556 October Sessions, 1974, Criminal Homicide.
Robert Bruce Evanick, York, for appellant.
Floyd P. Jones, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts and Nix, JJ., concur in the result.
In May 1975 a jury found appellant guilty of murder of the first degree. Post-trial motions were filed and denied and a mandatory life sentence was imposed on January 12, 1976. On appeal, this Court affirmed the judgment of sentence. 470 Pa. 237, 368 A.2d 281 (1977). The matter next came before the Court of Common Pleas of York County under the Post-Conviction Hearing Act following appointment of counsel, amendment of petition, and evidentiary hearing. The lower court rejected appellant's PCHA claim and the case is now before this Court on appeal from that court's order. The appellant raises two issues concerning the ineffectiveness of trial counsel: (1) that trial counsel failed to adequately advise appellant of the factors that he should consider in deciding whether he should testify on his own behalf; (2) that trial counsel failed to adequately impeach a Commonwealth witness.
The facts of the case are that Derek Spells, appellant, acting with two other men, Kenny Smith and Raymond Johnson, lured Charles Jeffers into an apartment in York, Pennsylvania on November 17, 1973 and there killed him by
inflicting multiple knife wounds and a shotgun blast fired at close range. While appellant did not inflict the fatal blows, evidence at trial established that he helped saw off the shotgun that was used in the killing; that he brought the shotgun to the apartment the night of the killing; that he was aware that his acquaintance, Raymond Johnson, planned to kill the victim and to enlist appellant's aid in the killing; that he stabbed the victim twice; and that he handed the knife to Smith, who also stabbed him. Further, evidence established that Spells was aware that the victim was on his way to the apartment, where Spells and two others waited for him; that Spells and his two confederates were armed with a Bowie knife and a sawed-off shotgun; and that Spells could have left the apartment, but did not leave prior to the victim's arrival. Finally, the evidence establishes that Spells was seen in the apartment on the night of the killing carrying a sawed-off shotgun in the sleeve of his coat; that Spells helped to dispose of the victim's body and remove blood from the kitchen, where the murder occurred; and that Spells and others divided the money and jewelry found on the body of the victim. Spell's primary defense to the charge was that he was coerced by Raymond Johnson into participating in the killing.
Appellant made a number of statements to police concerning his part in the killing. On November 27, 1974 and December 5, 1974 appellant admitted that he was present when the victim was killed, but insisted that Raymond Johnson did the killing. Spells claimed that while he helped remove the body and shared the money and jewelry taken from the dead victim, he was forced at gunpoint to help dispose of the body and to promise that he would not tell anyone of the murder. Then on December 10, 1974, Spells changed his story and stated that he had participated in the actual killing. He stated that he and Kenny Smith stabbed the victim and that Raymond Johnson both stabbed and shot the victim.
Appellant's first claim is that counsel was ineffective because he failed to adequately advise appellant as to
whether he should testify on his own behalf. In Commonwealth v. Musi, 486 Pa. 102, 107, 404 A.2d 378, 380 (1979), this Court stated:
It is by now axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest. . . . If a reasonable basis for ...