evidence to support his allegations of ineffective assistance of counsel.
After a careful review of the voluminous transcripts and the numerous exhibits, this District Court finds that defendant has not met the burden of the Strickland test.
Defendant's trial counsel possesses broad experience as a trial attorney. From 1964 to 1968, counsel was associated with a large firm in Allegheny County, Pennsylvania, that specialized in plaintiff's litigation. Also, during that period, defendant's counsel tried a homicide case. In 1968, defendant's counsel moved to Greensburg, Westmoreland County, Pennsylvania, where he engaged in both civil and criminal practice of the law for over eleven years. Defendant's counsel testified that he was placed on a panel of Westmoreland County lawyers and was appointed often by the Westmoreland Court of Common Pleas on what were considered as the more significant cases. Defendant's trial attorney further testified that additionally, he had tried approximately eight to ten criminal cases to a jury verdict in the United States District Court for the Western District of Pennsylvania. Said defendant's trial counsel indicated that his practice since 1968, to the time of defendant's trial, primarily had been the trial of criminal cases.
This Opinion will now address defendant's fourteen contentions.
Defendant alleges that defense counsel was ineffective in failing to move to have separate trials for each count of the indictment. The first count of the indictment charged that the defendant unlawfully and willfully obstructed, delayed and affected interstate commerce by attempting to and attaining an alleged sum of $ 8,000.00, from Donald G. Williams and Edmond George Good, Jr., architects in the construction of the Grandview Elementary School; that this alleged sum was obtained by wrongful use of fear and under color of official right by the defendant between July, 1973, and continuing to May, 1977, while the defendant was a member of the Derry Area School Board in Westmoreland County, Pennsylvania. The second count of the indictment charges that the defendant unlawfully and willfully obstructed, delayed and affected interstate commerce by extortion in that he attempted to and obtained an alleged sum of $ 5,000.00, from Desmone and Szalai Associates, and Charles L. Desmone, architects for the construction of the Eastern Westmoreland Area Vocational and Technical School, that the alleged sum was obtained by the defendant by the wrongful use of fear and under color of official right between March, 1974, and continuing until 1976, when the defendant was a member of the School Board for the Eastern Westmoreland Area Vocational Technical School and a member of the joint operating committee for this school board.
Defendant argues that the counts of the indictment were unrelated and should not have been tried together and the joinder of the two counts gave the United States an undue advantage at the defendant's trial. Defendant further argues that under the entire circumstances of this case, the Court should have and would have severed the two counts, had defense counsel filed a motion for severance.
Defense counsel admitted that he did not discuss with his client, the defendant, the merits or demerits of trying the counts together. However, defense counsel did assess the strengths and weaknesses of trying both counts simultaneously and decided, "putting them together, I thought you had the chance of knocking Desmone out, with Williams coloring both cases muddy." (H.T. 252) Defense counsel weighed the risk of strengthening the prosecution's case, if the counts were tried simultaneously and made the tactical decision not to seek a separate trial on each count. Under these circumstances, defendant has not established that counsel's performance was deficient. In fact, in retrospect, defense counsel testified, "well, that's a risk, but I'd take it again if I had the chance." (H.T. 252) There is no evidence that defendant's attorney's decision not to move to sever the counts of the indictment for trial, prejudiced the defendant.
Defendant alleges that his trial counsel was ineffective in that said counsel generally failed to prepare for trial and that he, said counsel, improperly failed to obtain available facts from the Government by pre-trial discovery.
During the preliminary interviews between defendant and his counsel prior to trial, defendant informed counsel that defendant, did not receive the payments from Williams and Desmone that were alleged in the two counts of the indictment. Defendant's trial counsel was asked at pages 246-247, of the post trial hearing transcript:
Q. Certainly in cross-examining Williams and Desmone, the two primary witnesses, you would try to fix, to the best of your ability, the dates, times and places of payments, and if they couldn't remember, that would affect their credibility, right, is that correct?
A. No. I disagree with you there, Mr. Rothman. I thought that part of the inherent problem of the Government's witnesses was that they were sufficiently vague that it would reflect adversely on their credibility, and I intended to play on that, as opposed to trying to nail them down and getting them to give a specific date. I thought I gained more by showing that these people, for having given what they alleged to be substantial sums of money were awfully vague and general, and hopefully, the jury would believe, therefore, that they were not worthy of belief.