No. 670 Pittsburgh 1981, Appeal from the Order of June 3, 1981, Court of Common Pleas, Erie County, Criminal Division, Nos. 880 & 881 of 1978.
Kenneth Dean Chestek, Erie, for appellant.
Michael J. Veshecco, District Attorney, Erie, for Commonwealth, appellee.
Hester, Johnson and Popovich, JJ.
[ 315 Pa. Super. Page 567]
This is an appeal from the order of Common Pleas Court, Erie County denying the Post Conviction Petition of appellant, Raynard Green. We now affirm.
Appellant was a juvenile when he was convicted by a jury of burglary*fn1 and first degree murder.*fn2 A sentence of life
[ 315 Pa. Super. Page 568]
imprisonment was imposed upon appellant. On April 25, 1980, the Supreme Court of Pennsylvania affirmed judgment of sentence.*fn3 Subsequently, appellant and new counsel petitioned for relief under the Post Conviction Hearing Act*fn4 alleging the ineffectiveness of trial counsel. An evidentiary hearing into the allegations set forth in appellant's petition was conducted on May 5, 1981. By order dated June 3, 1981, appellant's petition was dismissed, prompting this appeal.
Three allegations of trial counsel's ineffectiveness are presented for our review. They are: (1) whether trial counsel's failure to move to suppress appellant's confession was ineffective assistance of counsel; (2) whether trial counsel's failure to object to testimony from which the jury could infer that appellant had a prior criminal record was ineffectiveness of counsel; and (3) whether trial counsel was ineffective for failing to object at trial and argue on direct appeal that the question asked of a defense witness by the trial judge was prejudicial error.
Before embarking upon our consideration of the issues raised by appellant's allegations of ineffectiveness, we must first set forth the traditional two step analysis we will employ in determining whether appellant received ineffective representation. Our initial focus will be to determine whether the issues underlying appellant's allegations are of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Should we conclude that appellant's allegations of ineffectiveness have arguable merit, we must proceed to determine whether trial counsel's action or inaction was supported by a reasonable basis designed to effectuate appellant's interests. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979). Trial counsel will be deemed ineffective if the underlying issue is of arguable
[ 315 Pa. Super. Page 569]
merit and he lacked a reasonable basis for his action or inaction.
Appellant's first allegation of ineffectiveness concerns trial counsel's failure to seek the suppression of inculpatory statements allegedly made by appellant to the Erie Police. Appellant advances four separate arguments as to why the statements were suppressible. They are: (1) that the statements employed at trial were suppressible because they were not his statements; (2) that he did not waive his Constitutional rights; (3) that the Commonwealth did not comply with the "interested adult" rule; and (4) that the Commonwealth violated his right to counsel when it conducted an interrogation after an assertion by his mother that she wanted counsel present. Where counsel has failed to move for suppression of evidence and the claim of inadmissibility would not have been frivolous, counsel will not be deemed ineffective if there is a reasonable basis for his action. Commonwealth v. Williams, 304 Pa. Super. 351, 450 A.2d 716 (1982).
The circumstances surrounding the acquisition of the statements herein were described at appellant's trial by Detective Dickie Russell and subsequently, at the P.C.H.A. hearing by appellant. Detective Russell testified that appellant was arrested at his home on April 26, 1978. Appellant testified that upon arrest the police informed him of his Miranda*fn5 warnings in the presence of his mother. Appellant was taken to the Erie Police station alone. He testified that his mother stayed behind to try and secure an attorney for him. Upon arrival at the police station, appellant was placed in a room on the first floor until the police could secure the presence of an adult for appellant's interrogation. Shortly thereafter, appellant's 21 year-old sister, Theresa Green, arrived. Upon her arrival, appellant was transferred to another room in the police station for interrogation
[ 315 Pa. Super. Page 570]
after a five minute interval. The record does not reveal whether appellant and his sister were together during this five minute period of time. The detective testified that once relocated to the other room, appellant and his sister were both informed of his Miranda rights, and that both acknowledged their awareness of his rights and indicated their willingness to talk to the police. In contrast, appellant testified that his Miranda warnings were not given to him at any time while he was at the police station. Detective Russell testified that both appellant and his sister signed a waiver form; however, it was stipulated at the P.C.H.A. hearing that only appellant's sister had actually signed the waiver form.
Detective Russell testified that in the early stages of the interrogation, appellant's sister would volunteer answers to his questions before appellant was able to answer. He went on to testify as to what appellant had said during the interrogation. Appellant testified in a conflicting fashion at the P.C.H.A. hearing, first acknowledging that he made statements to the police and later maintaining that he did not. The detective also testified that Theresa elicited from appellant an admission, in the presence of police officers, that he killed the victim.
To resolve the conflicts in the evidence, we note that the hearing judge found appellant's testimony at the P.C.H.A. hearing to be "blatantly false". With this in mind, we turn to examine appellant's arguments for suppression.
Appellant's first argument deserves only short mention. We have examined the record and find that it belies the claim that the Commonwealth's own testimony indicated that the statements read at trial were not appellant's. While Detective Russell testified that in the early part of the interrogation that appellant's sister would volunteer answers to the questions posed to appellant, in other portions of the detective's testimony, he recalled what appellant had said to him and, at times, his recollections purported to be verbatim accounts of what appellant had said.
[ 315 Pa. Super. Page 571]
N.T. October 18, 1978 at 148 and 158. This ...