No. 2945 Philadelphia, 1983, Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 1881-80.
Nancy J. Hopkins, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wieand, Montemuro and Cercone, JJ.
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Larry Brunner and Woodrow Wilson Murphy were tried before a jury and were found guilty of burglary and conspiracy. On direct appeal, the Superior Court ordered a new trial for Murphy but affirmed the judgment of sentence imposed upon Brunner. Commonwealth v. Brunner, 305 Pa. Super. 411, 451 A.2d 714 (1982). The Supreme Court granted Brunner's petition for allocatur and thereafter vacated the judgment of sentence and remanded "to the court of common pleas for an evidentiary hearing to determine whether petitioner was afforded effective assistance of counsel." Commonwealth v. Brunner, 502 Pa. 358, 466 A.2d 991 (1983). The court of common pleas, after an evidentiary hearing, found that Brunner's counsel had not been ineffective and denied relief. The case is now before this Court on appeal from the order denying relief.
The issues requiring consideration are two in number. First, was trial counsel ineffective for failing to make an objection or move for a mistrial when a principal Commonwealth witness testified that Murphy, the co-defendant,
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used an alias because he had "jumped parole?"*fn1 The second issue is whether counsel was ineffective, after having produced an alibi witness, for failing to request a jury instruction regarding the significance of the alibi evidence.
"Before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant's interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel's assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967). We presume counsel is effective. Moreover, the burden of establishing counsel's ineffectiveness rests upon his client.
Commonwealth v. Litzenberger, 333 Pa. Super. 471, 481-482, 482 A.2d 968, 973 (1984), quoting Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983).
Appellant's trial counsel testified that after a pre-trial motion to sever the Brunner and Murphy cases had been unsuccessful, he adopted a trial strategy which included keeping Brunner "as far away from Mr. Murphy as I could." A part of the stolen property had been found in Murphy's house. The Commonwealth's case against Murphy, therefore, was ...