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filed: January 31, 1986.


Appeal from the PCHA Order of May 8, 1985, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. CP-2282-2285 June Term, 1970.


Regina B. Glerin, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com. appellee.

Brosky, Johnson and Hester, JJ.

Author: Hester

[ 350 Pa. Super. Page 368]

This is an appeal from the denial of appellant's Post Conviction Hearing Act (PCHA) petition without a hearing after the appointment of counsel. The court held that appellant waived his right to PCHA relief by waiting nine and one-half years before bringing this collateral attack on his judgment of sentence. Although the court erred in finding a waiver, we affirm the denial of relief due to the frivolity of appellant's PCHA petition.

Appellant was sixteen years old when arrested for first degree murder and other offenses. He was convicted by a jury and sentenced to life imprisonment. On direct appeal, his judgment of sentence was affirmed by the Pennsylvania Supreme Court on October 16, 1974. Commonwealth v. Blagman, 458 Pa. 431, 326 A.2d 296 (1974). Appellant

[ 350 Pa. Super. Page 369]

    initiated this PCHA proceeding on March 8, 1984. The PCHA court held a hearing on the Commonwealth's motion to dismiss on the basis of the unexplained delay of more than nine years.

Appellant's excuses for the delay included his youth at the time of trial, his IQ of eighty-seven, his family's inability to afford counsel for him, his second-grade reading level and his ignorance of the law and how to prepare a petition. On the other hand, appellant was twenty years old when first incarcerated at Camp Hill in 1973. When he arrived, the law clinic told him to wait until a decision was made on his direct appeal. In 1978, appellant obtained a high school equivalency diploma, yet did nothing for five more years until he was transferred to Pittsburgh in 1983. While at Camp Hill, appellant used both the legal clinic and the law library, but never filed a post-conviction petition until March, 1984.

After the hearing, the court concluded as a matter of law that appellant's "delay of approximately nine and one-half years bars consideration of [his] petition for relief." The court cited Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981), as authority for invoking the doctrine of laches.

This was error. "The concept of laches . . . has no place in the criminal law." Commonwealth v. Doria, 468 Pa. 534, 542, 364 A.2d 322, 326 (1976). This court recently held that "a reading of the plain language of the [Post Conviction Hearing Act] compels the conclusion that a defendant's first PCHA petition can be filed at any time following conviction." Commonwealth v. Taylor, 348 Pa. Super. 256, , 502 A.2d 195, 197, (1985). The Taylor court went on to say that

     an unexplained delay in filing a PCHA petition is a factor to be considered in assessing the merits of the issues raised in the petition . . . . We should take care, then, to distinguish between finding a petitioner's claims meritless based, in part, on delay in filing a PCHA petition, and dismissing a first PCHA petition without considering the claims raised therein . . . . The latter is inappropriate.

[ 350 Pa. Super. Page 370]

Appellant's post-conviction petition challenged trial counsel's effectiveness on five grounds: 1) failure to challenge confessions which were the product of unnecessary delay between arrest and arraignment, 2) failure to raise the issue of the voluntariness of his confession when he was a sixteen-year-old juvenile with a second-grade reading level, 3) failure to object to improper prosecutorial remarks and to preserve this issue on appeal, 4) failure to object to the inadequacy of the jury charge, and 5) failure to call a crucial witness to testify at trial.

When reviewing the effectiveness of counsel, we determine first whether the underlying claim has merit. If it does, we then ask whether counsel's handling of the matter had some reasonable basis designed to effectuate his client's interests. Counsel is not ineffective unless there was no reasonable basis for the action, and counsel may not be faulted for failing to take baseless or meritless action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant. Commonwealth v. Clemmons, 505 Pa. 356, 360-62, 479 A.2d 955, 957-58 (1984); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Garrity, 331 Pa. Super. 475, 480 A.2d 1133 (1984); Commonwealth v. Davis, 331 Pa. Super. 285, 480 A.2d 1035 (1984).

The first two issues have been finally litigated adversely to appellant. The arguments made by appellant were considered and rejected by the supreme court on direct appeal ten years ago. Commonwealth v. Blagman, supra, 458 Pa. at 434-37, 326 A.2d at 297-300.

Appellant's remaining allegations of ineffectiveness of counsel provide no grounds for relief. "Where it is clear that allegations of ineffectiveness of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed." Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

[ 350 Pa. Super. Page 372]

The third issue is a spurious claim that trial counsel was ineffective in failing to object to unspecified prejudicial remarks during the prosecutor's closing statement at trial. Appellant's argument is that counsel did not raise the issue of prejudicial prosecutorial remarks either at trial or on direct appeal, and his failure to do so constituted ineffective assistance. Appellant, however, provides absolutely no basis for us to assume that any prejudicial comments were actually made during closing argument.*fn1

The fourth issue is that counsel was ineffective for failing to object to the inadequacy of the jury charge at appellant's trial. He makes specific reference to the absence of instructions on appellant's own testimony, on circumstantial evidence and on expert opinion testimony, as well as a failure to charge the jury on the burden of proof as to the voluntariness of his confession.

Where a charge to the jury adequately states the law and creates no likelihood of confusion, counsel will not be deemed ineffective in failing to oppose the charge. Commonwealth v. Rowles, 501 Pa. 514, 462 A.2d 619 (1983). In reviewing a jury's instruction we must look to the whole charge, and not just isolated excerpts therefrom. Commonwealth v. Waller, 322 Pa. Super. 11, 468 A.2d 1134 (1983).

Commonwealth v. Davis, 331 Pa. Super. 285, 301-02, 480 A.2d 1035, 1043 (1984). After reviewing the trial court's entire charge, we hold that it accurately and fairly reflected the law as it applied to the present case and that counsel cannot be deemed ineffective in failing to oppose the charge.

Finally, appellant challenges trial counsel's effectiveness for failing to call "a crucial witness" to testify at trial. Not only has appellant neglected to explain how the testimony

[ 350 Pa. Super. Page 373]

    was crucial to appellant's case, he has failed to identify the witness. In 1981, the Supreme Court of Pennsylvania stated:

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing 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). More recently, this court has held that in seeking to establish that counsel was ineffective for failing to call witnesses, "appellant must show (1) the identity of the witnesses, (2) that counsel knew of the existence of the witnesses, (3) the material evidence that the witnesses would have provided, and (4) the manner in which the witnesses would have been helpful to his cause." Commonwealth v. Polk, 347 Pa. Super. 265, 271-273, 500 A.2d 825, 828-829 (1985). Appellant has utterly failed to allege any of these elements, and this claim is also patently frivolous.

For the foregoing reasons, we affirm the order denying appellant's petition for post-conviction relief.



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