No. 51 Harrisburg, 1981, Appeal from the Order of the Court of Common Pleas, York County, August Sessions, 1975, No. 1284.
Scott Lee Kelley, Hanover, for appellant.
Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
Wickersham, Rowley and Watkins, JJ.
John Robert Sutherland, Jr., appellant, was convicted by a jury of robbery and simple assault in April of 1976. Post-trial motions were denied, and appellant was sentenced to 7 1/2 to 15 years imprisonment. On direct appeal, the judgment of sentence was affirmed by this Court. Commonwealth v. Sutherland, 266 Pa. Super. 615, 405 A.2d 540 (1979).
On January 14, 1980, appellant filed a pro se petition for post-conviction relief seeking either his release from custody and discharge or the grant of a new trial on the ground that his trial counsel was ineffective. Counsel was appointed, and after an evidentiary hearing the petition was dismissed. Appellant's post-conviction counsel failed to file a timely appeal from that order. As a result, a second petition for post-conviction relief was filed by the appellant seeking the restoration of his appeal rights. The trial court granted his petition, appointed new counsel and reinstated the appellant's appeal rights. This appeal followed.
It has been said, generally, that in evaluating claims of ineffective assistance of counsel, the court must first determine whether or not the issue underlying the charge of ineffectiveness is of at least, "arguable merit". If it is, then the court must determine whether or not the course chosen by counsel had "some reasonable basis designed to effectuate" the interest of his client. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980). If the issue is without
arguable merit or there was a reasonable basis for counsel's actions, counsel will be considered effective. "Furthermore, a finding of ineffectiveness can never be made unless it is demonstrated that the alternatives not chosen offered a potential for success substantially greater than the course actually followed". Commonwealth v. Burton, 491 Pa. at 20, 417 A.2d at 614. Initially, however, it is necessary to ascertain whether the petitioners factual averments underlying the ineffectiveness claim are consistent with the record.
Prior to appellant's arrest on the charges involved in this case, his victim identified appellant's photograph contained in a photographic display at the police station. Later the victim observed appellant, who was under arrest on other charges, in a room of the police station in the custody of a police officer. The trial court found that this view was accidental and was not planned. Although his trial counsel filed a motion to suppress any evidence of the photo identification, the victim's view of appellant at the station and any in-court identification by the victim, appellant now argues that counsel was ineffective for neglecting "to examine [a] crucial element necessary to a fair trial, that of failure of the Commonwealth to provide counsel for" him at the photographic display and when he was viewed by the victim at the station. This argument, however, is contradicted by the record. Trial counsel raised the issue of counsel in the pre-trial motion to suppress and in post-trial motions filed on behalf of appellant. The question of the need for counsel at the pre-arrest identification proceedings and the view of appellant was likewise raised on direct appeal by appellant's trial counsel in the brief he filed on appeal to this Court. Appellant's trial counsel, therefore, was not ineffective for failing to move to suppress the victim's in-court identification on the ground claimed by appellant. The record shows that the issue of the right to counsel at the photo display and the view at the station was fully litigated, pre-trial, post-trial, and on direct appeal contrary to appellant's present claim.
At the suppression hearing, held April 29, 1976, on the motion filed by trial counsel, the Commonwealth was unable to present the collection of photographs used in the display. Counsel argued that this failure rendered any identification evidence by the victim inadmissible. The trial court held that the failure to produce the photographs did not render evidence of the victim's photographic identification inadmissible, nor did it require suppression of an in-court identification. Appellant now argues that counsel was ineffective for failing to cite, to the trial court, the decision of this Court in Commonwealth v. Jackson, 227 Pa. Super. 1, 323 A.2d 799 (1974). It is true that the Court in Commonwealth v. Jackson, required the suppression of any evidence concerning a photographic identification when the photographs are not produced for examination by defendant's counsel and the court. However, appellant was not harmed by the trial court's erroneous ruling in this regard since no evidence of the victim's photographic ...