No. 423 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division - Criminal Section, of Philadelphia County, Nos. 542, 544, May Term, 1975
Kenneth L. Mirsky, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Montgomery and Lipez, JJ.
[ 312 Pa. Super. Page 504]
Appellant Rodney Simmons was convicted of third degree murder, 18 Pa.C.S. § 2502, and possession of an instrument of crime, 18 Pa.C.S. § 907, on October 2, 1975, after a jury trial. Still represented by trial counsel, he took a direct appeal to the Supreme Court, which affirmed the judgment of sentence.*fn1 He then filed a petition for relief under the Post Conviction Hearing Act (PCHA),*fn2 represented by new counsel. The petition was denied and Simmons, now represented by a third attorney, appeals.
He makes two arguments in this appeal. First, he claims that his trial counsel was ineffective on the ground that he failed to preserve for appellate review the contention that appellant's statement to police, given after a break in interrogation and not preceded by a rewarning of his constitutional rights, was erroneously admitted at trial. Second, he contends that his original post-conviction hearing counsel was ineffective because he failed to assert the ineffectiveness of trial counsel in failing to preserve for appellate review a claim that the court's charge was erroneous because
[ 312 Pa. Super. Page 505]
it unconstitutionally placed the burden of proving self-defense on the defendant. We reject appellant's first claim, but agree that his argument that original post-conviction hearing counsel was ineffective has merit.
In assessing appellant's claims of ineffective assistance of counsel, we are governed by the oft-cited principles set out by our Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967): we will find counsel to have been constitutionally effective so long as we are able to conclude that the course that he took had some reasonable basis designed to effectuate his client's best interests, id., 427 Pa. at 604, 235 A.2d at 352; ineffectiveness with regard to a failure to take a course of action will be found only if "the alternative not chosen offered a potential for success substantially greater than the tactics actually utilized, id.. 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. Thus counsel will not be found ineffective for failing to raise a baseless claim, and it is only when the claim foregone is of arguable merit that we will make an inquiry into the basis for the decision not to pursue it. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977).
Appellant's first contention, viz., the ineffectiveness of counsel in failing to preserve for appellate review the claim that his statement to police should have been suppressed because it was obtained in violation of his rights as set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we find to be without merit and hence affirm the order of the ...