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.
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.
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 ...