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submitted: August 5, 1985.


Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC 7609050A and CC 7609037A.


David S. Shrager, Duquesne, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Wieand, Popovich and Lipez, JJ. Popovich, J., concurs in the result.

Author: Wieand

[ 347 Pa. Super. Page 96]

This is an appeal from an order denying a P.C.H.A. petition after hearing.

Herbert M. Johnson was tried before a jury which found him guilty of armed robbery and murder in the second degree. Post-trial motions were denied, and Johnson was sentenced to prison for life. On direct appeal, Johnson was represented for the first time by counsel other than trial counsel. The Superior Court affirmed per curiam, and the Supreme Court denied allocatur. When Johnson next filed a P.C.H.A. petition, the court appointed a third attorney to represent him. Johnson, however, retained present counsel, his fourth, and court appointed counsel withdrew. An amended P.C.H.A. petition was then filed in which Johnson alleged that trial counsel and appellate counsel had rendered constitutionally ineffective assistance. An evidentiary hearing was held, but the court denied relief. In this appeal from the denial of post-conviction relief, Johnson argues that prior counsel were ineffective because they failed to preserve at trial and/or on direct appeal (1) that appellant may have been observed in handcuffs by members of the jury; (2) that the trial court did not instruct the jury on involuntary manslaughter; (3) that improper remarks were made by the prosecuting attorney during his opening statement; and (4) that the voir dire examination of prospective jurors was not held in public. We find no merit in these contentions and, therefore, affirm the order of the P.C.H.A. court.

As a general rule, ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents the defendant. Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977). However, where a P.C.H.A. petitioner alleges the ineffectiveness of appellate counsel for failing to raise trial counsel's ineffectiveness, the issues of trial and appellate counsel's effectiveness are properly presented to the P.C.H.A. court. See: Commonwealth v. Gans, 271 Pa. Super. 193, 197-198, 412 A.2d 642, 644 (1979).

[ 347 Pa. Super. Page 97]

In examining the P.C.H.A. court's denial of relief, our scope of review is limited to determining whether the court's findings were supported by the record and its order otherwise free of legal error. Commonwealth v. Broadwater, 330 Pa. Super. 234, 241, 479 A.2d 526, 530 (1984); Commonwealth v. Bellamy, 321 Pa. Super. 471, 475, 468 A.2d 806, 808 (1983). The findings of the P.C.H.A. court will not be disturbed unless they have no support in the record. Id. With respect to issues of credibility, we must defer to determinations made by the P.C.H.A. court. Commonwealth v. Jones, 324 Pa. Super. 359, 363, 471 A.2d 879, 881 (1984). We are guided by these restraints in determining the effectiveness of counsel in this case.

The initial inquiry which we make is whether appellant's claims are of arguable merit. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983); Commonwealth v. Kenney, 317 Pa. Super. 175, 182, 463 A.2d 1142, 1145 (1983) (quoting Commonwealth v. Kaufman, 307 Pa. Super. 63, 73, 452 A.2d 1039, 1044 (1982)). Only if the underlying claim is of arguable merit must we inquire whether the strategy chosen by counsel had some reasonable basis designed to effectuate the interest of his client. Commonwealth v. Hubbard, supra, 472 Pa. at 278, 372 A.2d at 696. The burden of establishing counsel's ineffectiveness lies with the petitioner. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802, 806 (1985). Counsel's effectiveness is presumed. Commonwealth v. McNeil, supra; Commonwealth v. Kenney, supra. After careful review of the record in this case, we agree with the P.C.H.A. court that there was no arguable merit in any of appellant's averments that he received ineffective assistance of counsel.

Johnson's first contention was that members of the jury may have seen him being led into the courtroom wearing handcuffs and that trial counsel was ineffective for failing to move for a mistrial on that basis. "As a general rule, defendants 'should not be subjected to physical ...

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