No. 718 Philadelphia, 1982, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County No. 2081 July Term, 1968.
Joseph V. Furlong, Jr., Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
Rowley, Wieand and Popovich, JJ.
[ 317 Pa. Super. Page 177]
The issue in this appeal is whether appellant's 1970 trial attorneys were ineffective because they failed to object and move for a mistrial when appellant, after repeated, deliberate outbursts, was ordered restrained and gagged by the trial court. We agree with the P.C.H.A. hearing court that appellant failed to show that counsel was constitutionally ineffective; and, therefore, we affirm the order dismissing appellant's P.C.H.A. petition.
On April 10, 1970, a jury found George Kenney, the appellant herein, guilty of murder in the first degree in connection with the shooting death of John Bucykowski during the holdup of a state liquor store in Philadelphia on May 4, 1968. A significant part of the Commonwealth's case had been a lengthy and detailed confession made by appellant. A sentence of life imprisonment was affirmed on direct appeal by the Supreme Court. Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972). On December 3, 1979, appellant filed a pro se P.C.H.A. petition contending that his trial counsel had been ineffective. New counsel was appointed, and a hearing was held. This appeal followed the denial of post conviction relief.*fn1
[ 317 Pa. Super. Page 178]
During the jury selection process, appellant became obstreperous. During voir dire examination of prospective jurors, appellant constantly interrupted both counsel and the court to propound his own, irrelevant questions. Despite several warnings from the court, appellant adamantly refused to allow the selection of jurors to proceed in an orderly manner. No sanctions were imposed, however, and the court recessed. On the following day, appellant resumed his disruptive behavior. He openly accused the trial judge of prejudice and denounced his lawyers.*fn2 Appellant received yet another warning. When the appellant was told that continued interruptions would result in his being gagged, he retorted:
THE DEFENDANT: If I have something to say, I'm going to say it.
THE COURT: You will keep quiet.
THE DEFENDANT: When I have something to say, I'll keep saying it.
THE COURT: If you don't keep quiet, we will gag you and we will remove you, if necessary, and you are to keep quiet.
THE DEFENDANT: If you're going to gag ...