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COMMONWEALTH PENNSYLVANIA v. CALVIN MARTIN (02/24/86)

submitted: February 24, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
CALVIN MARTIN, APPELLANT



Appeal from the PCHA June 11, 1985 in the Court of Common Pleas of Philadelphia County, Criminal No. 75-03-1961.

COUNSEL

Pamela P. Cohen, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Olszewski, Hoffman and Roberts, JJ.

Author: Hoffman

[ 356 Pa. Super. Page 528]

This is an appeal from the lower court's order denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. ยงยง 9541-9551.*fn* Appellant contends that (1) his former counsel were ineffective for failing to raise the following issues: (a) the prosecutor made improper remarks during his closing argument, (b) the trial court failed to recite the entire voluntary manslaughter statute in its instructions to the jury, and (c) the trial court erred in admitting a witness's testimony that she was threatened by appellant's friends, and (2) counsel who represented appellant in his appeal from his first PCHA petition was ineffective because he was an assistant district attorney at the time the petition was considered in the trial court. We disagree and, accordingly, affirm.

[ 356 Pa. Super. Page 529]

Appellant was found guilty of first degree murder in July, 1975 and was subsequently sentenced to a term of life imprisonment. On direct appeal our Supreme Court affirmed the judgment of sentence. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978). Appellant then filed his first PCHA petition, which was denied by the trial court. This court affirmed, Commonwealth v. Martin, 323 Pa. Superior Ct. 619, 470 A.2d 1042 (1984) (per curiam), and our Supreme Court denied allocatur. On August 6, 1984, appellant filed the instant petition, which was denied on June 11, 1985, and this appeal followed.

Appellant first contends that the prosecutor made an improper remark during his closing argument, and that all of his former counsel were ineffective for failing to raise this issue. When confronted with a claim of ineffectiveness of counsel, a reviewing court must first determine whether the issue underlying the claim of ineffectiveness is of arguable merit and, if so, whether the course chosen by counsel had a reasonable basis designed to serve the interests of his or her client. Commonwealth v. Buehl, 510 Pa. 363, 377-380, 508 A.2d 1167, 1174-75 (1986). Moreover, appellant must demonstrate that counsel's ineffectiveness worked to his or her prejudice. Id. (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967)).

Appellant alleges that the following remark was prejudicial:

When I finish my argument I will have done my duty, but it's all for naught, all for zero, and all for nothing in this case, unless you do you duty and I ask you now as I promised you I would at the outset of this case to find this defendant, Calvin Martin, guilty of first degree murder.

N.T. July 7, 1975 at 383. Comments by a district attorney do not constitute reversible error unless "the unavoidable effect of such comments would be to prejudice the jury, forming in ...


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