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COMMONWEALTH PENNSYLVANIA v. EDWARD S. BENNETT (11/06/81)

SUPERIOR COURT OF PENNSYLVANIA


November 6, 1981

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD S. BENNETT, APPELLANT

No. 86 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, of Philadelphia County, Nos. 1105, 1107 and 1108 August Term, 1974.

Before Wickersham, Beck and McEWEN, JJ.

MEMORANDUM OPINION:

Appellant was convicted by a jury of second degree murder, aggravated assault, and conspiracy.Following the argument and denial of post-trial motions, appellant was sentenced to ten to twenty years imprisonment on both the murder and robbery charges and one to two years imprisonment on the conspiracy charge; all sentences to run concurrently. This is an appeal from appellant's second Post Conviction Hearing Act petition.

The first question to be determined on appeal is whether an issue is waived because it is being raised for the first time when counsel has been ineffective in not raising it either by trial objections or in post-verdict motions. Such failure does not constitute waiver of that claim. See Commonwealth v. Pfeff, 477 Pa. 461, 384 A.2d 1179, 1181 (1978)

Still, the burden of proving ineffectiveness of counsel is clearly appellant's to bear. The standard in Pennsylvania is that the tactic chosen by counsel had some reasonable basis designed to effectuate the client's interest. See Commonwealth v. Maroney, 427 Pa. 599, 604, 233 A.2d 349 (1967).

Appellant argues that counsel did not properly preserve five issues: (a) admissibility of Sharon Lamar's and Willie Hamilton's statements, (b) the trial court's voluntary manslaughter instruction, (c) admissibility of photograph of victim, (d) the Commonwealth's summation, and (e) trial judge's basis for imposition of sentence. If these claims are not meritorious, counsel was not ineffective in not preserving them. See Commonwealth v. Arthur, 488 Pa. 262, 265, 412 A.2d 498, 500 (1980); Commonwealth v. Walley, 262 Pa. Superior Ct. 496, 396 A.2d 1280, 1283, n.6 (1979).

Appellant admitted telling his girlfriend, Sharon Lamar, that he shot the victim and when read her precise testimony, he conceded it to be "basically true." In Commonwealth v. Cheeks, 429 Pa. 89, 99, 239 A.2d 793 (1968), the Supreme Court held such a statement to be admissible where its truth was acknowledged. Lamar's statement becomes the defendant's own by adoption; it is receivable as an admission and may be offered as defendant's own admission of guilt.

Willie Hamilton's statement in reference to the shooting was, on the other hand, inadmissible hearsay, but admitting it into evidence was "harmless error." See Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155 (1978). Appellant was convicted of felony murder, aggravated robbery, and conspiracy; thus he was liable for the acts of his co-conspirator. Each admitted participation in the shooting, although each accused the other of pulling the trigger. Both would be guilty of the murder regardless of the shooter's identity.

Appellant contends that trial counsel was ineffective in not requesting limiting instructions before the admission of a photograph depicting the murder scene. It is well-settled that the admission of photos in a murder trial is within the trial judge's discretion. See Commonwealth v. Robinson, 433 Pa. 88, 91, 249 A.2d 536 (1969). Even if the photo is inflammatory, that in itself is not sufficient to exclude it. It is defendant's burden to show the photo was unduly gruesome. The photo at issue was important to aid the jury in understanding the crime.

Appellant next contends that counsel on direct appeal erred in not attacking the trial judge's charge on voluntary manslaughter. The judge merely conveyed his opinion that a verdict of voluntary manslaughter was not supported by the evidence. It is clear that he also informed the jury that they retained the prerogative to ignore the charge and to return a guilty verdict of voluntary manslaughter. See Commonwealth v. Bennett, 471 Pa. 419, 426-427, 370 A.2d 373, 376-377 (1977).

Appellant also contends that trial counsel was ineffective in failing to object to an improper summation by the Assistant District Attorney. There is no merit to this claim. Defense counsel asked the jurors to make an adverse inference from the fact that the prosecution did not call certain witnesses; the Assistant District Attorney merely pointed to the fact that defense could have called those same witnesses. It was proper to make such a reference in summation in order to rebut opposing counsel's attempt at imposing a negative light on prosecution's case. See Commonwealth v. Righler, 488 Pa. 441, 412 A.2d 846, 853 (1980).

Finally, it is asserted that the trial judge abused his sentencing discretion. This argument is erroneous. The sentence imposed was within the statutory guidelines. It is well-established that appellate courts should defer to the decision of lower courts unless the sentence imposed is manifestly excessive or evidences a clear abuse of discretion. See Commonwealth v. Williams, 456 Pa. 550, 552, 317 A.2d 250 (1974).

Accordingly, order and judgment of sentence are affirmed.

19811106

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