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COMMONWEALTH PENNSYLVANIA v. MICHAEL ELLIS (06/13/86)

filed: June 13, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL ELLIS, APPELLANT



Appeal from the Order of the Court of Common Pleas, Delaware County, Criminal Division, at No. 2827-81.

COUNSEL

David M. McGlaughlin, Philadelphia, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Newtown Square, for Com., appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Wieand, McEwen, Olszewski, Del Sole, Montemuro and Tamilia, JJ.

Author: Brosky

[ 354 Pa. Super. Page 14]

This is an appeal from the order dismissing appellant's claims of ineffective assistance of counsel and reinstating his judgment of sentence. Appellant raises three issues for our determination: (1) whether the trial court erred in not finding appellant's trial counsel ineffective for failing to preserve the issue of the illegality of his arrest; (2) whether the trial court erred in not finding appellant's trial counsel ineffective for failing to preserve the issue concerning the lack of qualification of the Commonwealth's expert witness; and (3) whether the trial court erred in not finding appellant's trial counsel ineffective for failing to request the trial judge to recuse himself, after the same judge had presided over appellant's suppression hearing. We have carefully reviewed the record and briefs submitted by counsel and find that trial counsel's inaction did not constitute ineffective assistance of counsel. Accordingly, we affirm.

Appellant was found guilty of burglary, theft and criminal conspiracy after a bench trial before the Honorable Melvin G. Levy, Jr. on October 21 and 22, 1981. Subsequently, appellant was sentenced to concurrent terms of one and one-half to five years less one day on the burglary and conspiracy counts. On his direct appeal, a panel of this Court remanded the case for an evidentiary hearing on the ineffectiveness claims.*fn1 On remand, the trial court determined that appellant's ineffectiveness claims were meritless and reinstated the judgment of sentence. We agree.

[ 354 Pa. Super. Page 15]

The test for ineffectiveness is firmly established in this Commonwealth:

It is now black letter law, requiring no citation, that counsel will not be deemed ineffective for failing to pursue a meritless claim; that counsel's assistance is deemed constitutionally effective where the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest; that the test for competency is not whether other alternatives are more reasonable, employing a hindsight evaluation of the record, but whether counsel's assessment of the case and his advice were reasonable; and, finally, in order to be entitled to relief under a theory of ineffective assistance of counsel, it must appear that counsel's action or inaction was prejudicial to the defendant.

Commonwealth v. Larkins, 340 Pa. Super. 56, 69, 489 A.2d 837, 843-844 (1985). Further, since counsel's stewardship is presumptively effective, the burden of establishing ineffectiveness rests upon the defendant. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).

Therefore, to succeed in his claims, in the instant case, appellant must show that the issues not preserved had arguable merit; that counsel's failure to pursue the issues had no reasonable basis; and that counsel's ineffectiveness so prejudiced his case that he was deprived of a fair trial. Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985). We will address appellant's issues seriatim.

Appellant's primary contention is that his trial counsel was ineffective for failing to preserve the issue of the alleged illegality of his arrest.*fn2 Appellant claims that at the time he was arrested, the Philadelphia police lacked probable cause to make the arrest. Thus, appellant sought the suppression of an inculpatory ...


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