NO. 705 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, Philadelphia County at Nos. 1429, 1431, 1432, 1433 April Term, 1974.
Before Brosky, Johnson and Popovich, JJ.
Appellant appeals from the lower court's Order, dated March 6, 1980, denying his request for relief pursuant to the Post-Conviction Hearing Act (PCHA).*fn1 We affirm the Order of the court below.
The relevant facts, appearing in the record, are as follows: Appellant's first trial ended in a mistrial. Thereafter, on April 4, 1975, appellant was found guilty by a jury of Attempted Kidnapping (18 Pa.C.S.A. §§ 2901 and 901), Criminal Conspiracy (18 Pa.C.S.A. § 903), Simple Assault (18 Pa.C.S.A. § 2701), Aggravated Assault (18 Pa.C.S.A. § 2702) and Robbery (18 Pa.C.S.A. § 3701). After post-trial motions were denied, appellant was sentenced 10 to 20 years for Robbery and concurrent terms of 5 to 10 years for Attempted Kidnapping and Criminal Conspiracy. Sentence was suspended on the remaining charges. We affirmed the appellant's appeal from the Judgment of Sentence in a per curiam order, Commonwealth v. Taylor, Pa. Super. , 359 A.2d 924 (1976), and a Petition for Allowance of Appeal was denied on August 3, 1976. Id.
On November 9, 1977, appellant filed a pro se PCHA petition. The lower court appointed counsel and an amended petition was filed, a hearing was held and the relief requested was denied. This appeal followed.
On appeal, appellant contends that trial counsel was ineffective for: 1) failing to "cite authority" to the lower court for the proposition that a witness can be impeached by prior inconsistent testimony; and 2) for "not submit[ting] written points for charge to the trial judge to counter those proposed by the prosecution."*fn2 (Appellant's Brief at 5 & 6)
In order to determine whether counsel's assistance was effective, we must be "able to conclude the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Preceding such inquiry, however, this Court must first decide if the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Jennings, Pa. Super. , 427 A.2d 231 (1981). If the underlying issue is found to be of arguable merit, then we have to determine whether the course chosen by counsel had some reasonable basis aimed at promoting his client's interests. Commonwealth v. Jennings, supra.
As for appellant's initial averment, the facts are these: At the second trial, appellant's counsel was cross-examining the victim, a Mr. Dykes. In the course thereof, the following ensued:
Q Mr. Dykes, you were reluctant to come in and testify in this case, weren't you?
[COMMONWEALTH'S ATTORNEY]: I didn't hear the answer.
THE COURT: He says in a ...