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COMMONWEALTH PENNSYLVANIA v. JOHN D'AMBRO (02/02/83)

decided: February 2, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN D'AMBRO, JR., APPELLANT



No. 80-3-484, Appeal from Order entered February 29, 1980 in the Court of Common Pleas of Philadelphia at No. 1550 July Term, 1974.

COUNSEL

Perry de Marco, Burton A. Rose, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Marianne E. Cox, Asst. Dist. Attys., Philadelphia, for appellee.

Roberts, C.j., and Nix,*fn* Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Flaherty, J., joins the majority opinion and files a concurring opinion. Zappala, J., joins in the majority opinion and in the concurring opinion of Larsen, J. Larsen, J., files a concurring opinion.

Author: Nix

[ 500 Pa. Page 305]

OPINION

This is an appeal from the denial by the Court of Common Pleas of Philadelphia of appellant's second*fn1 amended Post Conviction Hearing Act*fn2 (PCHA) petition which alleged ineffective assistance of counsel both at trial and on direct appeal. On January 3, 1975, appellant was convicted by a jury of murder of the third degree. Following denial of post trial motions, appellant was sentenced to a term of imprisonment of ten (10) to twenty (20) years. On direct appeal,*fn3 this Court affirmed by Per Curiam Order those issues raised by appellant.*fn4 Commonwealth v. D'Ambro, 467 Pa. 254, 356 A.2d 358 (1976).

[ 500 Pa. Page 306]

Appellant presently alleges two instances of ineffective assistance of counsel which he claims warrant relief. Appellant first contends counsel was ineffective on direct appeal for failure to raise the issue of the trial judge's refusal to charge the jury as to involuntary manslaughter. Second, appellant claims counsel was ineffective for failure to pursue on direct appeal the issue of the trial judge's denial of a motion for mistrial based on allegedly improper remarks made by the prosecutor during closing argument. For the reasons that follow, we affirm the order of the PCHA Court denying relief to appellant.

The standard against which a claim of ineffective assistance of counsel will be analyzed is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, counsel will not be deemed ineffective for failing to pursue a baseless claim. See, e.g., Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979).

Appellant's first claim of ineffectiveness is premised on an alleged entitlement to a jury instruction on involuntary manslaughter. Appellant contends that the issue of an involuntary manslaughter instruction was of arguable merit and, therefore, counsel's failure to pursue the objection to the trial court's refusal to give the requested charge on direct appeal constitutes ineffective assistance of counsel. Under the facts of this case, such a charge was not warranted and counsel was not ineffective for failing to pursue the issue on direct appeal.

The testimony at trial established that on the evening of July 1, 1974 appellant banged on the door of the victim's home. The victim, Mr. Vincent DeLorenzo, answered the door and proceeded out to his front step where he was confronted by appellant who fired several shots at him. One

[ 500 Pa. Page 307]

    of the witnesses for the Commonwealth, a Mr. Vincent Marciano, heard the shots and ran from the interior of the victim's home. He testified that he saw the victim bleeding and struggling with appellant over the gun. According to Marciano the appellant then fired again and the decedent collapsed to the ground. Mr. Marciano ...


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