No. 417 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Montgomery County, Criminal Division, No. 1368-79.
Eric J. Cox, Harrisburg, for appellant.
Ronald Thomas Williamson, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Cavanaugh, Montemuro and Hester, JJ. Cavanaugh, J., concurred in the result.
[ 321 Pa. Super. Page 472]
This matter is before the court on the appeal of Wilbur Lee Bellamy requesting relief under a Post Conviction Hearing Act (PCHA)*fn1 petition alleging ineffective assistance of trial counsel. Bellamy contends that his trial counsel was ineffective in failing to properly advise him regarding his decision whether or not to testify at trial. Bellamy originally expressed a desire to testify at trial in order to establish an alibi, however, he was concerned about his prior convictions being introduced to impeach his credibility. Trial counsel filed a motion to suppress Bellamy's prior convictions in a pretrial omnibus motion. The lower court deferred ruling on the motion to suppress the prior convictions until after the Commonwealth's case-in-chief at trial. At that point in the trial, Bellamy's counsel did not renew the motion to suppress and so the trial court was not called upon to make a ruling. See, Commonwealth v. Miller, 465 Pa. 458, 350 A.2d 855 (1976).
[ 321 Pa. Super. Page 473]
Bellamy, who did not testify at trial, argues that ineffectiveness of his trial counsel precluded him from making a knowing and informed decision regarding whether he should testify. Specifically, he contends that: (1) trial counsel never informed him of the motion and the possibility that his prior convictions might be suppressed, but instead advised him not to testify because his prior convictions would be admitted to impeach his testimony at trial; and, (2) even had he been aware of the motion to suppress, he could not have made an informed decision absent a definitive ruling on the motion.
This court previously ordered a remand in this case for an evidentiary hearing on the issue of ineffectiveness of trial counsel. Commonwealth v. Bellamy, 293 Pa. Super. 95, 437 A.2d 1007 (1981). That opinion instructed that the hearing develop why counsel did not renew the motion to suppress, and whether his failure to do so was a substantial factor in Bellamy's decision not to testify. An evidentiary hearing was held during which both trial counsel, Maurino Rossanese, and Bellamy testified. The lower court subsequently entered an order dismissing the petition and issued an accompanying opinion. In that opinion the lower court determined that the central issue was one of credibility, which they resolved against Bellamy.
While the lower court's dismissal of Bellamy's ineffective assistance of counsel claim was not couched in terms of the well-established standard for analysis of such claims, it is clear that the traditional test was met. That test requires a two-step inquiry. Initially, it must be determined whether the issue underlying the charge of ineffectiveness is of arguable merit. If arguable merit exists, the inquiry shifts to a determination of whether the course selected by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).
Applying this test, we consider whether the issue underlying the charge of ineffectiveness of counsel is of arguable
[ 321 Pa. Super. Page 474]
merit. It is imperative that the underlying issue be properly identified. The thrust of Bellamy's petition is that he did not have the opportunity to make an informed decision. It is significant that Bellamy does not contend that the motion to suppress was meritorious and he would have testified upon a ruling in his favor. The underlying issue, therefore, is not whether the ...