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COMMONWEALTH PENNSYLVANIA v. ROBERT COPE (03/12/86)

submitted: March 12, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT COPE, APPELLEE



Appeal from Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 83-03-1230-1233.

COUNSEL

Gaele M. Barthold, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

Burton A. Rose, Philadelphia, for appellee.

Wickersham, Wieand and Popovich, JJ. Popovich, J., files a dissenting opinion.

Author: Wieand

[ 359 Pa. Super. Page 143]

Robert Cope was tried non-jury and was found guilty of arson,*fn1 criminal mischief,*fn2 recklessly endangering persons and property*fn3 and risking a catastrophe,*fn4 offenses which had their genesis in an early morning fire at 912 Daly Street, Philadelphia, on February 24, 1983. Post-trial motions were filed by counsel who had not been trial counsel. Following an evidentiary hearing, the trial court found that trial counsel had been constitutionally ineffective and granted a new trial. Counsel had been ineffective, the court held, because he had failed to file a pre-trial motion to suppress the defendant's gasoline soaked clothing which had been seized by police without a warrant from Cope's hospital room. The Commonwealth appealed. We reverse and remand.

The fire was discovered by a neighbor, who called the Philadelphia Fire Department. When police arrived at the scene of the fire, they obtained from the neighbor a key to a locked passageway which lay behind the row of homes on Daly Street. When the police entered the passageway, they stumbled over the body of Robert Cope. He was semi-conscious, lying approximately sixty feet from the burning building, with his business papers strewn about the alley. The police observed that Cope appeared to have been singed by the fire and that his clothes were wet with a substance which, because of its odor, they determined to be gasoline. They learned that Cope was the owner of the burning building and determined, because of the locked condition of the passageway, that he could have entered the passageway only from the rear of his building. Cope was taken to Methodist Hospital, where he was admitted. After he had

[ 359 Pa. Super. Page 144]

    been undressed and placed in a hospital bed, police removed Cope's wet clothing from the hospital room and sent them to the police laboratory for analysis.

At trial, it was undisputed that the fire was incendiary in origin. It was stipulated by counsel that a report prepared by the police chemist, who had examined Cope's clothing, indicated that a petroleum distillate had been extracted from Cope's clothing. Appellee, who testified on his own behalf, said he could remember nothing before awakening in the alley.

In reviewing a claim of ineffective assistance of counsel, we must first determine whether the claim which counsel failed to assert was of arguable merit. See: Commonwealth v. Stoyko, 504 Pa. 455, 472, 475 A.2d 714, 723 (1984); Commonwealth v. Hubbard, 472 Pa. 259, 277, 372 A.2d 687, 695-696 (1977); Commonwealth v. Garvin, 335 Pa. Super. 560, 564, 485 A.2d 36, 38 (1984). Counsel will not be deemed ineffective for failing to assert a meritless claim. See: Commonwealth v. Albrecht, 510 Pa. 603, 626, 511 A.2d 764, 776 (1986); Commonwealth v. Stoyko, supra. If the underlying issue is of arguable merit, then a court must determine whether the course chosen by counsel had a reasonable basis calculated to serve the best interests of the client. See: Commonwealth v. Albrecht, supra, 510 Pa. at 625, 511 A.2d at 775; Commonwealth v. Stoyko, supra; Commonwealth v. Garvin, supra 335 Pa. Super. at 564-565, 335 A.2d at 38. In order to warrant a new trial, it must also be shown that counsel's dereliction prejudiced the outcome so as to deprive the accused of a fair trial. Commonwealth v. Buehl, 510 Pa. 363, 393, 508 A.2d 1167, 1175 (1986). See also: Commonwealth v. Albrecht, supra, 510 Pa. at 626, 511 A.2d at 776; Commonwealth v. Garvin, supra, 335 Pa. Super. at 566, 485 A.2d at 39; Commonwealth v. Litzenberger, 333 Pa. Super. 471, 482, 482 A.2d 968, 974 (1984).

As a general rule, where it is determined that counsel has been ineffective for failing to file a pre-trial motion to suppress evidence, the relief to be awarded is the

[ 359 Pa. Super. Page 145]

    right to challenge the questioned evidence in an evidentiary hearing. Only if it is thereafter determined that the evidence should have been suppressed will the defendant become entitled to a new trial. It is the improper use of illegally obtained evidence which entitles a criminal defendant to a new trial and not merely the failure of trial counsel to file a pre-trial motion to suppress. See: Kimmelman v. Morrison, U.S. , 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In the instant case, however, the parties used the hearing on Cope's post-trial motions to introduce evidence of the circumstances surrounding the seizure of Cope's clothing. As a consequence, the record is adequate to permit appellate review of the trial court's order directing a new trial.

Our review has convinced us that the trial court erred in ordering a new trial. Cope's clothing had been seized pursuant to a lawful arrest and, ...


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