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ROCK v. ZIMMERMAN

January 25, 1984

Gary Lee ROCK, Petitioner,
v.
Charles H. ZIMMERMAN, Supt., and Attorney General of Pa., Respondents



The opinion of the court was delivered by: CONABOY

 CONABOY, District Judge.

 I. INTRODUCTION

 This action is grounded upon a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). Gary Lee Rock is currently incarcerated on the basis of Pennsylvania state court convictions for first-degree murder and attempted murder. When we last addressed Rock's petition, *fn1" it was to explain our conclusions that four of the five major bases upon which Rock relied would not support a grant of habeas relief. *fn2" Regarding the fifth and final claim, that the public defenders assigned to Rock's case rendered ineffective assistance of counsel, we reserved decision pending the results of evidentiary hearings which we subsequently conducted. *fn3" See Rock v. Zimmerman, 543 F. Supp. at 197. In addition to the evidence received at those hearings, counsel have submitted briefs and memoranda in support of their positions; *fn4" thus, the matter is now ripe for our decision. After a most careful review of all the proceedings in the Pennsylvania courts, and the record in this action, we conclude that Rock's appointed counsel were ineffective insofar as they failed to present evidence of Rock's good character or argue or request a jury instruction on same, and insofar as they failed to file a motion to suppress certain physical evidence. We further conclude that this ineffectiveness was prejudicial enough to Rock's position to create a reasonable doubt that, had such ineffectiveness been absent from the trial, a jury might have arrived at a different outcome. Accordingly, we will grant Rock's petition for a writ of habeas corpus, and we will order that a new trial be conducted within a reasonable time in the Court of Common Pleas for Franklin County. Our analysis and reasoning for doing so follow.

 Both the factual and procedural background in this action are sufficiently recited in our previous Memorandum, Rock, 543 F. Supp. at 182, and supplemented by this Opinion. To recite the entire history now would be duplicitous. We will, rather, refer to significant events in this case at pertinent times throughout our discussion.

 II. DISCUSSION

 We previously set out in this case the scope of review a federal court must subscribe to in reviewing a state court conviction pursuant to a habeas petition. See Rock v. Zimmerman, 543 F. Supp. 179, 183-184, (M.D.Pa.1982). Suffice it to say that we are cognizant of the restricted perspective with which we must view Rock's remaining claims.

 We are also keenly aware of the standard in this Circuit for reviewing claims of ineffective assistance of counsel. "The standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place." Cerbo v. Fauver, 616 F.2d 714, 718 (3d Cir.1980), quoting Moore v. United States, 432 F.2d 730, 736 (3d Cir.1970) (en banc) (footnote omitted). Such an analysis requires careful consideration of the facts in each particular case. United States v. Baynes, 687 F.2d 659, 665 (3d Cir.1982) citing United States v. Decoster, 199 U.S. App. D.C. 359, 624 F.2d 196, 203 (D.C.Cir.1979). Our analysis does not stop there, however, for even if counsel is found to be ineffective in a given instance, the habeas petitioner must link a potential resultant prejudice to his counsel's inadequacies. "Rather than granting collateral relief outright when a conviction is tainted by ineffective assistance, then, a court should expect the habeas petitioner to demonstrate that there is a 'reasonable possibility' that had the error of which he complains not occurred, the jury might have arrived at a different outcome." United States v. Baynes, 687 F.2d at 670. *fn5" Thus, it is incumbent upon the habeas petitioner to show not only that his counsel was ineffective, but also that such ineffectiveness, beyond a reasonable doubt, prejudiced the outcome of his trial. See Chapman v. California, 386 U.S. 18, 22-24, 87 S. Ct. 824, 827-828, 17 L. Ed. 2d 705 (1967), and United States v. Baynes, Id. Compare United States v. Crowley, 529 F.2d 1066, 1070 (3d Cir.1976) cert. denied 425 U.S. 995, 96 S. Ct. 2209, 48 L. Ed. 2d 820 (1977).

 We stress that determinations of effectiveness are not arrived at with ease. We have painstakingly avoided any notions of "Monday morning quarterbacking". It is neither our function nor intent to second-guess the performance and decisions of Rock's trial counsel. At the same time, however, it is our duty to ensure that his right to effective assistance of counsel, guaranteed him by the Sixth Amendment to the Constitution of the United States, is provided and protected. This encompasses the entire spectrum of the obligations of defense counsel, i.e., the investigation, preparation and presentation of a defendant's case. Each phase of the process is equally important. Brilliant eloquence in the courtroom cannot negate incomplete preparation. See Moore v. United States, 432 F.2d 730, 739 (3d Cir.1970). With these firmly established principles in mind, we proceed to Rock's specific claims of ineffective assistance of counsel.

 1. Failure to file motions to suppress.

 Rock claims that his trial counsel were constitutionally ineffective in that they ". . . failed to move for the suppression of physical evidence. This evidence, consisting of soil samples, rifle shells, and other material, was seized by the police from petitioner's property, without a warrant, and without a showing of exigent circumstances, at a time well after the initiation of this criminal investigation." (Rider to p. 7 of Petition for Habeas Corpus). The "other material" referred to in the petition was more specifically described in the Petition's supporting brief as being photographs of the scene of the incident taken by state police, and physical observations recorded by the state police arson investigator, Trooper Randy Kepner.

 Positing an argument that all warrantless searches *fn6" are presumptively invalid save under special circumstances, Rock argues that had his trial counsel filed motions to suppress those items, such motions would have had a solid foundation in both law and fact. Because these items were received in evidence, although illegally obtained, Rock asserts, their presence served to buttress the Commonwealth's theory and argument that he had the requisite intent to commit the crimes he was charged with.

 The Commonwealth conversely argues that any motions to suppress the items in question would have been legally and factually baseless. The Commonwealth maintains that the items were seized by the state police under "exigent circumstances" which absolved the investigators of the need for proceeding pursuant to the Fourth Amendment requirement that a warrant issue before any evidence is seized. See generally Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). The Commonwealth further maintains that since it did not have to procure any warrants to search Rock's property, then it did not have to justify the searches and seizures in question. The conclusion urged by the Commonwealth is that a motion to suppress such evidence, even if filed, would not have been successful. Thus, it is the Commonwealth's position that Rock's counsel could not be found ineffective because there was no indication in the record that the motion had some chance of success. (Brief in opposition to Petition for Habeas Corpus, p. 10).

 In the Opinion and Order on Rock's post-trial motions, the Franklin County Court of Common Pleas concluded that the evidence in question was gathered shortly after the incident. "It appears that the investigation was made under exigent circumstances." (Respondent's Exhibit M, p. 53). The post-trial court put the burden on Rock to produce evidence and prove that the seizures in question were not effected under exigent circumstances. The court also concluded that no reason appeared in the record to justify the filing of ...


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