No. 13 Harrisburg, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal Division, at Nos. 1560 A. B CD 1979
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Brosky, Wieand and Montemuro, JJ.
[ 305 Pa. Super. Page 18]
On June 25, 1980, appellant, William Henry Tyler, was convicted of three counts of burglary.*fn1 No post-verdict motions were filed. On August 4, 1980, Tyler was sentenced to serve a term of imprisonment of three and one-half to seven years. He was also ordered to make restitution in the amount of $1,025. On September 17, 1980, Tyler filed a petition under the Post Conviction Hearing Act*fn2 in which he alleged numerous reasons why his trial counsel was ineffective. The P.C.H.A. court rejected all of Tyler's claims for relief save one, his request to be permitted to file a direct appeal nunc pro tunc. The P.C.H.A. court found that counsel was ineffective in failing to file an appeal. Tyler then filed this direct appeal.*fn3 We affirm the decision of the trial court in part but reverse in part and remand for resentencing the remaining count. Tyler's sole contention in this appeal is that his trial counsel was ineffective.
On June 20, 1979, Tyler, Charles Bullock and Jerry Corbin drove a car to a building at 100 Chestnut Street in Harrisburg. They entered the building using keys which Corbin possessed as an employee of the company hired by the owners of the building to perform janitorial services. Television
[ 305 Pa. Super. Page 19]
sets, radios and tape recorders were stolen from several offices, and one office reported missing several escrow checks. All the offices from which things were taken were broken into without any visible signs of force. The escrow checks were taken from an office which was broken into without force. The checks were within a desk which was usually locked. The desk was not forced open. No other articles were taken from that office. All the thefts, except for the checks, were reported the day after the criminal incident. The stolen checks were not reported until several days later. No person in any of the offices knew Tyler.
It is very clear that we will only find trial counsel to have rendered ineffective assistance of counsel where he failed to have any reasonable basis for failing to act in a manner which would have effectuated his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). We will not, however, fault counsel for failing to make frivolous or fruitless motions. Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978). The burden is on the defendant to successfully prove that his counsel was ineffective. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980).
First, Tyler claims that his trial counsel was ineffective for failing to file a pre-trial motion to quash the information. He complains the information was based on evidence of a corrupt source, Charles Bullock. This motion would have been based also upon a challenge to the testimony of Bullock given the fact, again, that Bullock was a corrupt source and that no independent corroboratory evidence was presented. Tyler claims counsel should, therefore, have challenged Bullock's "right to testify." Thus, he reasons as the information was based solely on what was Bullock's testimony, it should have been quashed. This contention is without merit. In Pennsylvania, a criminal conviction can be sustained solely on the basis of the uncorroborated testimony of an accomplice. Commonwealth v. Gordon, 254 Pa. Super. 267, 385 A.2d 1013 (1978).
[ 305 Pa. Super. Page 20]
Next, Tyler states that his trial counsel was ineffective because he did not object to certain remarks made by the trial judge to the jury. Those remarks were said as an introduction to the jury. They include:
The Court: Ladies and gentlemen, we are going to start the trial of the case and we will go on here for a while ...