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COMMONWEALTH PENNSYLVANIA v. ANTHONY GWALTNEY (03/10/82)

decided: March 10, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ANTHONY GWALTNEY, APPELLANT



No. 80-3-772, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, as of July Term, 1975, Nos. 612 and 613 dated October 20, 1980 denying Petition for Post Conviction Relief.

COUNSEL

William P. James, Philadelphia (Court-appointed), for appellant.

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

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., filed a concurring opinion in which O'Brien, C. J., joined.

Author: Larsen

[ 497 Pa. Page 508]

OPINION OF THE COURT

On December 8, 1975, appellant, Anthony Gwaltney, was convicted by a jury of murder of the third degree and criminal conspiracy in connection with the murder of John Wearing. Motions for a new trial and arrest of judgment were denied, and appellant was sentenced to consecutive prison terms of ten to twenty years on the murder conviction and five to ten years on the conspiracy conviction. Represented by the same counsel, appellant filed a direct appeal with this Court, and the judgments of sentence were

[ 497 Pa. Page 509]

    affirmed. Commonwealth v. Gwaltney, 479 Pa. 88, 387 A.2d 848 (1978).

On November 27, 1978, appellant filed a pro se petition for relief under the Post Conviction Hearing Act*fn1 in the Court of Common Pleas of Philadelphia County. Represented by new counsel, appellant filed an amended petition on March 9, 1979. A hearing was held on January 21 and 28, 1980. The instant appeal is from the P.C.H.A. Court's denial of appellant's petition.

Appellant's contentions are all premised upon his trial counsel's alleged ineffectiveness.*fn2 The P.C.H.A. court found these contentions to be without merit. We agree.

The test of constitutionally effective assistance of counsel is whether a "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, 235 A.2d 349 (1967) (emphasis in the original). The initial factor that is considered in applying this standard is whether the matters counsel is charged with failing to competently pursue had arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Initially, appellant contends that trial counsel was ineffective for failing to object to the prosecutor's question at trial to appellant's exercise of his right to counsel during interrogation. On March 5, 1975, appellant was taken into custody by the police and interrogated in connection with the murder of John Wearing. At that time appellant made an exculpatory statement. At trial, during direct examination by the ...


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