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BOX v. PETSOCK

November 16, 1987

EARL EUGENE BOX, Petitioner
v.
GEORGE PETSOCK, et al., Respondents



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, CHIEF UNITED STATES DISTRICT JUDGE

 The instant Petition for Writ of Habeas Corpus was submitted pursuant to 28 U.S.C. § 2254 on December 2, 1986. Petitioner, an inmate at S.C.I.-Pittsburgh, PA presented fifteen separate claims, alleging error by the trial court and ineffective assistance of counsel. See document 1 of the record. Respondents filed a Second Answer to the habeas corpus petition on July 8, 1987. See document 22 of the record. *fn1" Petitioner submitted a Counter Answer on August 3, 1987 and Amendments to the Counter Answer on August 6, 1987 and August 17, 1987. See documents 33, 34, and 35 of the record.

 This matter is now ripe for disposition. In accordance with the reasoning set forth below, the court will dismiss the instant Petition for Writ of Habeas Corpus.

 FACTUAL BACKGROUND

 On September 14, 1974, shortly after midnight, Steelton police received a call to investigate a shooting at Mueller's Tavern, a family-owned bar/restaurant located in the borough. *fn2" The bar had been the target of a robbery. Three armed men had entered the establishment and ordered everyone to lie on the floor. One patron ran into the tavern's kitchen and began to run up the stairs that connected the first floor tavern to the upstairs family living quarters. She fainted on the steps after seeing that one of the gunmen had followed her.

 Twenty-year-old John B. Mueller III was upstairs and apparently heard the commotion; he came to the top of the stairs. The gunman fired a single.32 caliber bullet which pierced Mueller's heart. He died a short time later.

 The gunmen fled with money taken from cash registers and patrons. They entered a waiting car and sped off.

 This incident was one in a series of similar robberies that occurred in the Harrisburg area. A subsequent robbery took place at the Fireside Bar in Carlisle. It resulted in the shooting death of a patron named Paul Liebold. Two days later one of the defendant's companions, Frank Martin, attempted to cash one of Liebold's checks. A suspicious teller kept the check and got the license number of the vehicle in which Martin was riding. He was subsequently arrested and identified in a lineup. Based on information received from Martin, police learned of the defendant and issued a warrant for his arrest. A search of an abandoned apartment which had been rented by a woman named Nellie Dixon, and which was said to be the defendant's residence, revealed two guns, at least one of which was used by the gunmen. The defendant was later arrested in Boston, Massachusetts.

 During the trial the defendant's companions identified him as the person who shot and killed John Mueller III. The Commonwealth also introduced evidence of the other robberies committed by the gang as well as one of the guns found in the Dixon apartment. The court instructed the jury on the elements of first, second and third degree murder and on those of robbery. After several hours of deliberation they found the defendant guilty of both murder in the second degree and robbery. Defendant was sentenced to a term of life and two consecutive terms of ten (10) to twenty (20) years.

 DISCUSSION

 This court's latitude in reviewing the state court proceedings is limited. 28 U.S.C. § 2254(d) directs that the factual findings of both the trial court and the Pennsylvania Supreme Court "shall be presumed to be correct." See Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981). Sumner holds that a habeas corpus petitioner, in order to overcome state court factual determinations, must demonstrate "by convincing evidence" that the state proceeding was inadequate or the determinations clearly erroneous. See Hubbard v. Jeffes, 653 F.2d 99, 102 (3d Cir. 1981).

 Petitioner's main contention is that he was denied effective assistance of counsel. The test for ineffective assistance of counsel contains two hurdles: (1) the convicted defendant must show that his counsel's performance was deficient to the extent that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and (2) the convicted defendant must establish that the deficient performance prejudiced his defense to the extent that it deprived him of a fair judicial proceeding whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984).

 The court in Strickland elaborated upon the first prong in the test, stating as follows: "A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all of the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690, 104 S. Ct. at 2066. The court also noted that counsel is presumed to have rendered adequate assistance, that counsel has a duty to make reasonable investigations, and that the question of counsel's ineffectiveness is a mixed question of law and fact. Id. at 690-691, 698, 104 S. Ct. at 2066, 2070, 80 L. Ed. 2d 674.

 The court in Strickland explained the second prong in the test in the following manner: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d 674; see also Hubbard v. Jeffes, 653 F.2d 99, 104 (3d Cir. 1981); Williams v. Zimmerman, 1987 U.S. Dist. LEXIS 5435, No. 86-5731 (E.D. Pa. June 18, 1987); Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977) (counsel is not ineffective for failing to raise a baseless claim).

 Petitioner next asserts that he was denied effective assistance of counsel in that trial counsel was unprepared for trial, had only one interview with petitioner, failed to call witnesses to the alleged illegal search and seizure, failed to thoroughly cross examine witnesses, mainly detective Macon, and failed to object on petitioner's behalf. Petitioner concludes that his trial proceedings were thus "a farce and a mockery of justice". Petitioner's contentions are clearly without merit.

 In Smith v. United States, 644 F. Supp. 303, 308 (D. Md. 1986), aff'd, 815 F.2d 74 (4th Cir. 1987), the court stated as follows:

 
Implicit in the right to effective assistance of counsel is that an accused and his attorney shall have a reasonable time to investigate, prepare and present a defense. No set length of time is guaranteed, and whether defendant is denied his right must be determined under the circumstances of each case. Chambers v. Maroney, 399 U.S. 42, 54, 90 S. Ct. 1975, 1982, 26 L. Ed. 2d 419 (1970). . . . Counsel should confer with his client to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations to determine if a defense can be developed, and allow enough time for reflection and preparation for trial. Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968), cert. denied, 393 U.S. 849, 89 S. Ct. 80, 21 L. Ed. 2d 120 (1968). See also United States v. DeCoster, 159 U.S. App. D.C. 326, 487 F.2d 1197, 1203-04 (D.C. Cir. 1973).

 The record in this case does not support petitioner's contention that trial counsel was unprepared. While petitioner claims that his attorney met with him only once, his attorney testified that he met with petitioner at least five times. See document 26 of the record, at p. 6. To the extent that petitioner bases this claim on counsel's failure to interview witnesses to the allegedly illegal search and seizure or to support his objection to the "common scheme" evidence with a memorandum of law, it is likewise without merit inasmuch as the court concludes infra that the common scheme evidence was properly admitted and that petitioner had no standing to object to the contested search and seizure at Nellie Dixon's apartment. See infra, slip op. at pp. 8-12, 25-26. The record also establishes that trial counsel objected at various points on petitioner's behalf, especially in regard to the "common scheme" evidence, and that counsel cross-examined Detective Macon on the only point possible, i.e., the possibility of someone having planted the evidence in Nellie Dixon's apartment.

 Trial counsel was appointed over sixty days before the trial. See document 1 of the record, at p. 5, para. 12(B). He conducted pretrial discovery and filed various pretrial motions on behalf of petitioner and followed the trial proceedings of petitioner's co-defendants. See document 26 of the record, at pp. 4-6, 15-16. Counsel consistently pursued the theory that the petitioner had not been involved in the incident at Mueller's Tavern and that he was being made the scapegoat by the other defendants. See id. at pp. 9-10; see generally id. at pp. 3-27. Counsel presented an opening argument, cross-examined prosecution witnesses, made timely objections to questions and the admission of evidence, helped petitioner present his own testimony, and made a closing argument to the jury. See generally documents 23 and 24 of the record (trial transcript).

 Petitioner next contends that trial counsel was ineffective for failing to file a pretrial suppression motion. Petitioner claims that there was no probable cause supporting petitioner's arrest or the search of his dwelling. This court concludes, based on petitioner's testimony at trial, that he lacked standing to object to the search of Nellie Dixon's apartment. As the court also concludes that probable cause existed to support petitioner's arrest, this claim will also be dismissed.

 At trial, petitioner was asked several times if he lived in Nellie Dixon's apartment over the Penn Photo store on Third Street in Harrisburg. As the following excerpts from the transcript illustrate, petitioner consistently answered in the negative:

 
Q. Did you have an apartment here in Harrisburg?
 
A. No, sir, I never had an apartment here in this city, no, sir.
 
* * * *
 
Q. Did you live in the apartment over Penn Photo on Third Street?
 
A. Let me explain this to you. The young lady that was living there by the name of Nellie, I can't really pronounce the name. She was living there, right. I knew the young lady. I used to go ...

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