decided: November 20, 1984.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
CALVIN FLOYD, APPELLANT
No. 91 E.D. Appeal Docket 1982, Appeal from the Judgment of Sentence imposed on October 5, 1982, by the Order of the Court of Common Pleas, Criminal Division, Philadelphia County, Per Honorable John A. Geisz No. 1317 through 1320 August Term, 1980.
Janis Smarro, Philadelphia, (Court-appointed), for appellant.
Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Div., Allan Sacks, Philadelphia, Marion E. MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee.
Nix, C.j., Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j. and Larsen, J., concurred in the result.
[ 506 Pa. Page 88]
Opinion OF THE COURT
Calvin Floyd appeals a Philadelphia County Common Pleas Court Order denying his post-verdict motions for a new trial and in arrest of judgment, which followed his conviction by jury of murder of the first degree and the jury's imposition of a sentence of death. For the reasons that follow, we affirm the denial of a new trial, but modify the sentence to life imprisonment.
[ 506 Pa. Page 89]
sarcasm of defense counsel at the conclusion of his cross-examination of a prosecution witness:
MR. BERRY: I have no more questions of him. He can get out this courtroom and get out the city hall. (Sic) [N.T. 2/17/81, p. 47]
While we do not condone this retort or others by the prosecutor, where, as here, the prosecutor's verbal impropriety "was motivated by, and was commensurate with," that of defense counsel, such retorts do not constitute a basis for reversal of a jury verdict. Commonwealth v. Stoltzfus, 462 Pa. 43, 62, 337 A.2d 873, 880 (1975). Commonwealth v. Gwaltney, 497 Pa. 505, 513, 442 A.2d 236, 240 (1982). Accordingly, defense counsel's failure in the present case to object to the prosecutorial retorts he himself prompted does not constitute ineffective assistance of counsel, because it is not an "unreasonable strategy," to refrain from making non-meritorious objections. See Commonwealth v. Barren, 501 Pa. 493, 462 A.2d 233 (1983); Commonwealth v. Rawles, 501 Pa. 514, 524, 462 A.2d 619, 624 (1983).
Floyd further contends that his counsel ineffectively assisted him because he advised Floyd to testify, which advice Floyd accepted, thereby exposing himself to what proved to be damaging cross-examination. We must reject this contention, because "the decision whether or not to testify on one's own behalf rests solely on the defendant." Rawles, 501 Pa. at 523 n. 3, 462 A.2d at 624 n. 3. The record before us admits of no disagreement between Floyd and his counsel as to his testifying.
Floyd next argues that his trial counsel was ineffective because he did not interview or call as a witness Police Officer Daniel Rienckney.*fn3 Shortly after the murder, in a nearby location, Officer Rienckney took into custody an individual who to some degree fit the description of the murderer provided by eyewitnesses, but this individual was
[ 506 Pa. Page 92]
released after investigation. Floyd does not contend that this omission in anyway prejudiced his defense, only that it may have done so. He makes no allegation that an interview of, or testimony by, Officer Rienckney would have in any way added to the evidence presented in his defense. Thus, we must reject this contention, for one
who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which an appellate court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.
Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).
Floyd lastly argues that his trial counsel was ineffective because he failed to preserve, in post-trial motions, objections to the admission of what he contends was prejudicial hearsay evidence.
The testimony of Detective Checchia that prosecuting eyewitnesses, Edgar Thomas and Walter Pernell, feared reprisal from the defendant was inadmissible hearsay. Similarly inadmissible, on hearsay grounds, was the detective's testimony that Steven Brown, an alleged eyewitness who was not called upon to testify, and Sandy DeLuca, the victim's daughter, viewed a composite sketch composed from eyewitnesses' descriptions and that Brown stated that the sketch resembled the murderer while DeLuca stated that the sketch resembled the defendant. The detective's testimony constituted inadmissible hearsay, but, in view of the overwhelming evidence against the defendant, harmless error was committed. Defendant's conviction was supported, overwhelmingly, by testimony of eyewitnesses to the murder, testimony that prior to committing the murder the defendant declared to various persons his intent to kill the victim, and testimony that a week after the murder the defendant bragged about having committed the crime. See
[ 506 Pa. Page 93]
of convictions. See United States v. Schartner, 426 F.2d 470 (3rd Cir., 1970) (prosecuting attorney's improper expression of belief that defendant is guilty is not cause for grant of new trial when the remarks, fairly construed, refer only to belief based on evidence and not to opinion formed from extraneous facts).*fn4
Floyd also contends that the trial court erred in denying his post-trial motion for a new trial which was based upon prosecution witness Charmaine Mills' post-trial recantation of her testimony that Floyd had shown her a gun, stating that he had used it to commit the murder.
"Recantation testimony is considered extremely unreliable. The trial court is to deny a new trial unless satisfied that the recantation is true and an appellate court is not to disturb the decision unless there is clear abuse of that discretion." Commonwealth v. Nelson, 484 Pa. 11, 13, 398 A.2d 636, 637 (1979).
We find no abuse of discretion in the case at hand because the trial court found the recantation unreliable on the basis of the determination that there was a significant possibility that the witness was pressured into it, and our review of the record supports this determination. Moreover, the rejection of the recantation is also supported by the other evidence linking Floyd to the murder. See Nelson, 484 Pa. at 14, 398 A.2d at 637.
Floyd alternatively argues that his sentence should be modified to life because of prosecutorial misconduct in closing argument during the sentencing hearing.
[ 506 Pa. Page 95]
The prosecutor argued in closing that the jury should pronounce a sentence of death because of the possibility that Floyd might one day get out of prison if he received a life sentence. The prosecutor initially noted that Floyd might escape from prison to murder again:
MR. DI DONATO: . . . Calvin Floyd's a predator, ladies and gentlemen of the jury. He is a predator. He is (sic) done it before and he will do it again. He's escaped from prison once.
[N.T., 2/23/81, p. 144]
The prosecutor subsequently posed the possibility that Floyd might one day receive parole, and at least implied that Floyd might murder one of the jurors:
MR. DI DONATO: . . . you go to sleep at night not following the law in this case, and if you read ten years from now that the parole board let Calvin Floyd out and he killed somebody like you, Mrs. Brown, or you, Mrs. Smithers, or you, Mr. Carey, you sleep with it.
[N.T., 2/23/81, p. 145]
It is extremely prejudicial for a prosecutor to importune a jury to base a death sentence upon the chance that a defendant might receive parole, Commonwealth v. Aljoe, 420 Pa. 198, 216 A.2d 50 (1966), or the possibility of escape from prison, Brooks v. Francis, 716 F.2d 780 (11th Cir. 1983), particularly where, as here, the jury was cognizant of the facts that Floyd had previously been convicted of prison breach and, also, that he had attempted to escape from custody the very morning of the sentencing hearing. Consequently, we must reduce the penalty to life imprisonment. Aljoe.*fn5