No. 118 Philadelphia 1982, Appeal from the Judgment of Sentence of January 5, 1982, Court of Common Pleas, Philadelphia County, Criminal Division Nos. 804, 805, 807 June Term 1972.
William P. James, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cirillo, Johnson and Cercone, JJ.
[ 324 Pa. Super. Page 447]
Appellant was adjudged guilty on April 30, 1980 by a jury trial on the charges of assault and battery,*fn1 aggravated assault and battery,*fn2 assault and battery with intent to commit murder,*fn3 aggravated assault and battery on a police officer,*fn4 and carrying firearms on a public street.*fn5 Following the denial of written post-verdict motions, appellant was sentenced on October 15, 1981 to consecutive terms of 3 1/2 to 7 years for the merged assault charges*fn6 and 1 1/2 to 3 years for the firearms violation. A motion for reconsideration of sentence was denied on January 5, 1982. Appellant brings this direct appeal from the judgment of sentence. We affirm.
The facts underlying appellant's convictions concern his involvement in the shooting of Officer Parsons, a Philadelphia policeman, on May 30, 1972 near Holmesburg Prison. The victim observed the appellant and another man removing a large bag, which contained grappling hooks, a shotgun, and one hundred rounds of ammunition, from a vehicle. The appellant dragged the bag up an embankment while his collaborator remained near the vehicle. Officer Parsons requested the appellant to stop. As Parsons reached for his radio, the appellant shot at him from the top of the embankment. The second male also fired at the victim. Parsons radioed for assistance, but was critically wounded by a gunshot to the jaw and mouth before help arrived. Upon arriving at the scene, the police cordoned off and surrounded the area where the suspects were believed to have been hiding. The appellant was arrested the following
[ 324 Pa. Super. Page 448]
day attempting to leave the area. Appellant was first tried and convicted by a jury on February 7, 1973. On appeal permitted nunc pro tunc, the Superior Court vacated sentence and remanded for an evidentiary hearing on the question of whether trial counsel was ineffective. Commonwealth v. Howard, 258 Pa. Super. 440, 392 A.2d 875 (1978). Upon remand, the lower court granted a new trial. It was appellant's conviction at this second trial that he presently appeals.
On this appeal, appellant presents four substantive issues for our review through the allegation that trial counsel was ineffective. "It is well settled that '[w]hen confronted with a claim of ineffective assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client's interests.'" Commonwealth v. Lewis, 314 Pa. Super. 298, 303, 460 A.2d 1149, 1151 (1983) (citations omitted). See also, Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). We will first review the merits of the claims in issues # 1, # 2, # 3, and # 4 and then discuss the validity of appellant's ineffective assistance of counsel claims. The issues are:
1. Whether the trial court erred in denying appellant's motion to discharge a juror for cause.
2. Whether appellant was deprived of his right to be present during the selection of the jury.
3. Whether appellant was deprived of his right to public trial when (a) the courtroom was temporarily emptied so the jury panel might be seated, (b) certain people were excluded from the courtroom for a short period of time, and (c) the trial court entered a written order to control the public's conduct in or near the courtroom.
4. Whether certain photographs were impermissibly entered into evidence.
5. Whether trial counsel was ineffective for failing to object to the actions occurring in ...