Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, CC No. 8208934 and CC No. 8209095.
Paul R. Gettleman, Pittsburgh, for appellant.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellee.
Brosky, Rowley and Popovich, JJ.
[ 359 Pa. Super. Page 464]
This is an appeal from a judgment of sentence of six to twelve years imprisonment imposed following appellant's conviction by a jury of two counts of robbery. Appellant raises two issues on appeal: 1) was trial counsel ineffective for (a) failing to request a hearing on the after-discovered alleged prejudice of several jurors and by (b) failing to call certain witnesses to discredit the identification of appellant; and 2) was his constitutional right of equal protection violated when all three black veniremen called as potential jurors were peremptorily challenged by the prosecution. We remand for a hearing on appellant's equal protection claim.
I. Ineffective Assistance of Counsel
In assessing appellant's claims of ineffectiveness, we must determine whether the issue underlying appellant's claim of ineffectiveness is of arguable merit. If the court finds that the claim has merit, then the inquiry shifts to whether the course chosen by counsel had some reasonable basis directed at promoting the appellant's interests. Finally, if the court finds that there was no reasonable basis for counsel's actions, then the court must determine whether counsel's errors so prejudiced appellant's defense as to deny him a fair trial. Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985).
[ 359 Pa. Super. Page 465]
Appellant, who is black, first claims that counsel was ineffective because he failed to request a hearing when he learned, following the verdict, that some of the jurors were allegedly biased against blacks. At a post-trial hearing concerning the claim of counsel's ineffectiveness, one of the jurors, Mrs. Healy, testified*fn1 that based on certain statements made during jury deliberations, she thought four of the jurors were prejudiced against blacks and had determined the credibility of some of the witnesses based on their race. Mrs. Healy testified that on voir dire, none of the jurors admitted that race would affect their deliberations. However, Mrs. Healy also testified that when she confronted the jury members with her belief that they were racially prejudiced, they denied her allegations. The record shows that neither Mrs. Healy, nor anyone else, specifically identified what racially discriminatory statements the other jurors made. Appellant also did not present the testimony of the jurors who allegedly were biased. The allegations that racially discriminatory remarks were made during jury deliberations by jurors and that some jurors were racially prejudiced were not substantiated. Furthermore, Mrs. Healy herself admitted that the jurors who were allegedly biased had denied such bias. Therefore, the trial court found that appellant had shown neither bias nor prejudice. We agree that appellant has not shown any merit to his underlying claim of ineffectiveness.
Furthermore, counsel testified that he did not request a hearing because it was his understanding of the law that he could not call a juror to testify to impeach the other jurors under the circumstances of this case. The general rule is that a juror may not impeach his or her own verdict after the jury has been discharged, but discharged jurors can testify regarding outside influences during their deliberation. Commonwealth v. Syre, 348 Pa. Super. 110, 501 A.2d 671 (1985); Commonwealth v. Fuller, 336 Pa. Super. 507,
[ 359 Pa. Super. Page 466485]
A.2d 1197 (1984) and cases cited therein. Because there is no allegation that there were extraneous facts, evidence, or opinions relayed to the jury which might have influenced it, under the general rule, neither Mrs. Healy nor any of the other jurors should have testified. When assessing counsel's ineffectiveness, we must follow the law as defense counsel knew it at the time of trial. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Bradley, 332 Pa. Super. 99, 480 A.2d 1205 (1984). Considering that there was no law allowing a juror to impeach his own verdict, counsel's failure to request a hearing was reasonably based. Therefore, even if there were merit to appellant's underlying claim, we would not find counsel to have been ineffective.
Appellant's second assertion of ineffectiveness of counsel is that counsel should have called the two police officers who received the descriptions of the two robbers from the complaining witnesses and appellant's brother, Tyrone, to discredit the identification of appellant as the gunman. The original written police description of the robbers depicted the gunman as being approximately 5'7" and 170 pounds. At the time of his arrest, appellant was 5'11" and 145 pounds. Appellant argues that counsel should have called the police officers to testify to this initial description because it was so different from appellant's own physical characteristics. Appellant also argues that counsel should have called Tyrone to the stand so that the jury could see him since Tyrone's physique more closely fit the initial description of the gunman.
Trial counsel testified that he did not call the police officers because a third police officer, Officer Hart, had already testified in a way which minimized the discrepancy in weight and height such that there was no issue left to argue to the jury. Officer Hart testified that the police officers who wrote the description of the robbers established the precise figures of 5'7" and 170 pounds from the
[ 359 Pa. Super. Page 467]
victims' demonstration with their hands of the robbers' size. When one of the police officers reviewed the written report with one of the victims, the victim told him that the gunman was 5'11". Considering the evidence concerning the initial police report, the identification of appellant, and counsel's stated reason for not calling the two policemen as witnesses, we find that appellant's claim of error is without merit and that counsel's action had a reasonable basis. Therefore, counsel was not ineffective.
Appellant's argument that his brother Tyrone should have been called as a witness is also without merit. At an in camera hearing, Tyrone affirmatively invoked his Fifth Amendment right to remain silent. The Commonwealth may not call a witness when it is known that he actually will invoke the Fifth Amendment privilege against self-incrimination. Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983). There was no question here that Tyrone would invoke his Fifth Amendment rights if he were called to the stand in the presence of the jury. Although it would have been appellant and not the Commonwealth who would have called him, the possibility of prejudice to the defendant as a result of the jury seeing Tyrone invoke the Fifth Amendment coupled with counsel's expressed concerns that the jury might perceive Tyrone as the accomplice whose existence had ...