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COMMONWEALTH PENNSYLVANIA v. LARRY MILLER (07/02/81)

decided: July 2, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
LARRY MILLER, APPELLANT



No. 373 January Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia No. 1432 November Term, 1965

COUNSEL

Ralph D. Friedman, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Kauffman

[ 494 Pa. Page 232]

OPINION

This appeal is from an order of the Court of Common Pleas of Philadelphia denying appellant, Larry Miller, relief under the Post Conviction Hearing Act ("P.C.H.A.").*fn1

On September 30, 1965, at approximately 11:30 p. m., appellant shot and killed Edward David White in a gang related incident at 53rd and Locust Streets in Philadelphia, and was arrested almost immediately thereafter. In March, 1966, upon the advise of privately retained counsel, appellant entered a plea of guilty to murder generally, pursuant to a plea bargain agreement. In return, the Commonwealth certified that the case rose no higher than murder of the second degree. Appellant was adjudged guilty of murder of the second degree and sentenced to a term of imprisonment of four and one-half to twenty years. No appeal was taken from the judgment of sentence.

Almost eleven years later, on February 10, 1977, appellant filed a pro se P.C.H.A. petition seeking to have his guilty plea set aside on the ground of ineffective assistance of counsel.*fn2 Counsel was appointed, and an amended petition

[ 494 Pa. Page 233]

    was filed. After an evidentiary hearing, the P.C.H.A. court denied the petition.*fn3 This appeal followed.*fn4

Appellant maintains that counsel was ineffective in advising him to enter a guilty plea: (1) without attempting to suppress an allegedly involuntary confession, and (2) in spite of counsel's knowledge that at trial an alleged eyewitness would have retracted his prior statement implicating appellant. We disagree.

"[B]efore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967), once it has been determined that the particular course of action chosen by counsel had some reasonable basis designed to effectuate his client's interests, counsel will be deemed constitutionally effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Additionally, there is a presumption in the law that counsel is effective, Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d ...


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