Appeal from Judgment of Sentence entered June 17, 1982 in the Court of Common Pleas, Philadelphia County at Nos. 2795, 2797 of 1981. CRIMINAL SECTION
Joseph N. Bongiovanni, III, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Kelly, Montgomery and Hester, JJ.
[ 356 Pa. Super. Page 86]
This case involves a direct appeal from judgment of sentence imposed upon the appellant, Reginald Stinnett, following a conviction in a jury trial for robbery. We find no merit in the appeal and accordingly affirm the judgment of sentence.
On the evening of February 5, 1981, Officer Edward Cottrell and three other officers of the Philadelphia Police Department were assigned to conduct a decoy operation in the area of Broad and Tasker Streets in South Philadelphia.*fn1 Officer Cottrell acted as the decoy and was dressed as a semi-derelict. Three police officers dressed in street clothes acted as a surveillance and back-up unit.
[ 356 Pa. Super. Page 87]
At the west side corner of Broad and Tasker, Officer Cottrell reached into his pocket, removed a roll of bills, counted, and then returned the roll to his pocket. He then proceeded down the steps into the subway. The appellant, Reginald Stinnett, followed Officer Cottrell down the steps. At the first landing, the appellant threw Officer Cottrell against the wall, threw him to the ground, and took from his pockets four dollars ($4.00) and a roll of theatrical money. The appellant then fled up the steps to effectuate his escape. He was apprehended, however, by Officer Cottrell's back-up team.
On January 29, 1982, a jury convicted the defendant of robbery. Post-trial motions were filed and denied. On June 17, 1982, the Honorable Louis G. Hill sentenced the appellant to serve a term of imprisonment of not less than four (4) years nor more than eight (8) years. A timely notice of appeal was filed.
On appeal, the appellant contends that: 1) trial counsel was ineffective for failing to investigate sufficiently; 2) the trial court wrongly ruled that the Commonwealth could introduce the appellant's prior convictions for impeachment purposes; 3) inclusion in the career criminal program denied the appellant equal protection of laws; 4) the court improperly restricted cross-examination of the Commonwealth's witnesses; 5) the court erred in failing to declare a mistrial after a Commonwealth witness violated the trial court's sequestration order; and 6) trial counsel was ineffective for failing to preserve these issues in post-verdict motions. We shall consider the allegations seriatim.
The appellant first contends that trial counsel was ineffective for failing to adequately investigate the background of arresting officers and that of their unit to determine their predisposition for making false arrests. We cannot agree.
[ 356 Pa. Super. Page 88]
"It is undoubtedly true that a defense attorney's failure to investigate potentially meritorious defenses . . . can constitute ineffective assistance of counsel if no reasonable basis exists for counsel's failure." Commonwealth v. McNeil, 506 Pa. 607, 616, 487 A.2d 802, 806 (1985); accord Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). However, counsel's stewardship of the trial is presumed to be effective, and the burden of establishing counsel's ineffectiveness rests upon the defendant. McNeil, 487 A.2d at 806; Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 608, 235 A.2d 349, 352-53 (1967).
It is only when the claim which has been foregone is of arguable merit that further inquiry must be made into the basis for counsel's decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Trial counsel's failure to gather and marshal evidence on appellant's behalf could constitute ineffectiveness only if such evidence existed. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).
In the instant case, the appellant has not disclosed what evidence counsel failed to discover and how it would have aided his cause. Such an omission is fatal to the appellant's claim. Accord Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173 (1985) (failure to raise unspecified supplemental post-trial motions); Commonwealth v. Blagman, 350 Pa. Super. 367, 504 A.2d 883 (1986) (failure to disclose testimony or even name of omitted "crucial" witness); Commonwealth v. Polk, 347 Pa. Super. 265, 500 A.2d 825 (1985) (failure to make offer of proof as to substance of omitted witnesses' testimony); Commonwealth v. Scott, 345 Pa. Super. 86, 497 A.2d 656 (1985) (failure to establish a sufficient factual predicate to support the ineffectiveness claim).
The appellant next contends that "the trial judge abused his discretion by permitting defendant's prior convictions
[ 356 Pa. Super. Page 89]
[to] be used, if he testified, to impeach his credibility. . . ." (Appellant's Brief at 8). However, our review of the record reveals no such ruling by the trial court.
Prior to commencement of trial, defense counsel inquired as to whether any of the appellant's prior convictions would be admissible for impeachment purposes if the appellant decided to testify at trial. After a brief discussion, the trial judge concluded that a Bighum*fn2 hearing would be required. (N.T. at 55-59). After the jury selection process was concluded, the trial judge conducted a Bighum hearing. The trial court proceeded to weigh the facts in terms of the balancing test announced in Bighum, supra, and refined in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).
The court heard argument with respect to the first three factors (N.T. at 238-47), then turned to the fourth prong of the Roots test. A lengthy discussion of this factor appears in the record. (N.T. at 248-261). The Commonwealth cited our decision in Commonwealth v. Dombrauskas, 274 Pa. Super. 452, 418 A.2d 493 (1980), and argued that because the Commonwealth had only the one witness their need for the prior conviction evidence was great. (N.T. at 250). The Commonwealth contended that only Officer Cottrell could testify regarding the robbery itself. (N.T. at 247-249).
Defense counsel countered that the Commonwealth had not one, but four eyewitnesses. (N.T. at 250-252). The trial judge indicated to defense counsel that in order to properly balance the factors he would have to know the defendant's version of the events. (N.T. at 255). Defense counsel then informed the court that the defendant would claim that: he did not rob Officer Cottrell; he was walking down to catch a bus at Broad and Tasker; the police officers arrested him without cause; he had not been down the subway steps at all; and the officers knew him and had set him up. (N.T. at 255-259).
The Assistant District Attorney Thompson then agreed not to use the prior conviction ...