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COMMONWEALTH PENNSYLVANIA v. NATHANIEL DURAH-EL (08/09/85)

filed: August 9, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
NATHANIEL DURAH-EL, APPELLEE



Appeal from Order of the Court of Common Pleas, Criminal Division, of Warren County, No. 381 of 1983.

COUNSEL

Richard A. Hernan, Jr., District Attorney, Warren, for Commonwealth, appellant.

Paul R. Gettleman, Zelienople, for appellee.

Wieand, Cirillo and Johnson, JJ.

Author: Wieand

[ 344 Pa. Super. Page 513]

Nathaniel Durah-El was arrested and charged with theft by unlawful taking and theft by receiving stolen property in connection with the unlawful taking of several gas grills

[ 344 Pa. Super. Page 514]

    from the Warren County Fairgrounds. A jury acquitted him of theft by unlawful taking but found him guilty of theft by receiving stolen property.*fn1 After post-trial motions had been filed, trial counsel was permitted to withdraw, and present counsel was appointed. He filed supplemental motions alleging, inter alia, that appellee's trial counsel had rendered ineffective assistance. The trial court agreed and at the conclusion of an evidentiary hearing granted a new trial. The Commonwealth appealed.*fn2 We reverse.

The first reason cited by the court for awarding a new trial was trial counsel's failure to move pre-trial to suppress an oral statement made by appellee "that he took one of the gas grills and sold it to someone." The court found as a fact that trial counsel had known of the oral statement. The court then awarded a new trial because "[t]here is a possibility the alleged inculpatory statement may not have been made voluntarily and knowledgeably and in our opinion this should have been explored considering all of the circumstances." (Trial Court Opinion at p. 2) (Emphasis supplied). This was improper.

The burden of proving constitutionally ineffective assistance of counsel was on the appellee. Commonwealth v. Shore, 487 Pa. 534, 536, 410 A.2d 740, 741 (1980); Commonwealth v. LaSane, 479 Pa. 629, 634, 389 A.2d 48, 50 (1978). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Garvin, 335 Pa. Super. 560, 564, 485 A.2d 36, 38 (1984). "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. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983), quoting Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233,

[ 344 Pa. Super. Page 515234]

-235 (1981), quoting Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967). "A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . . The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. . . . In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions." Commonwealth v. Litzenberger, 333 Pa. Super. 471, 478-80, 482 A.2d 968, 972-973 (1984), quoting Strickland v. Washington, 466 U.S. 668, , 104 S.Ct. 2052, 2066-2067, 80 L.Ed.2d 674, 695-696 (1984). Counsel will not be deemed ineffective for not filing pre-trial motions just for the sake of filing them. Cf. Commonwealth v. Courts, 317 Pa. Super. 271, 280, 463 A.2d 1190, 1195 (1983). Moreover, it is not enough to show that counsel made an error of judgment; defendant must also prove that it prejudiced the outcome of the case. Commonwealth v. Garvin, supra at 566, 485 A.2d at 39.

In the instant case, appellee told his trial counsel that the police had warned him of his right to remain silent in accordance with ...


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