disregard for probability of death or great bodily harm).
If evidence has probative value, it is ordinarily admissible regardless of an imagined reaction of a jury. Travis v. United States, 269 F.2d 928, 939 (10th Cir. 1959), rev'd on other grounds, 364 U.S. 631, 81 S. Ct. 358, 5 L. Ed. 2d 340 (1961). "Probative evidence will frequently be prejudicial to a party, but that does not mean that it will cause the factfinder to ground a decision on an emotional basis." Gross v. Black & Decker (U.S.), Inc., 695 F.2d 858, 863 (5th Cir. 1983). Thus, it is only when the probative value of evidence is substantially outweighed by the danger of unfair prejudice that it should be excluded. See Fed.R.Evid. 403; cf. Commonwealth v. Travaglia, 502 Pa. 474, 492, 467 A.2d 288, 297 (1983) and cases cited therein; Commonwealth v. Dear, 342 Pa. Super. 191, 201 n. 1, 492 A.2d 714, 719 n. 1 (1985) and cases cited therein ("evidence of other offenses is subject, as is all relevant evidence, to exclusion if its probative value is outweighed by the 'danger that the facts offered may unduly arouse the jury's emotions of prejudice, hostility or sympathy.'").
This court is unable to conclude that the high probative value of petitioner's admission was outweighed by the danger of unfair or undue prejudice to the petitioner. The mere fact that petitioner was a member of a "religious minority" does not give rise to a presumption that jurors of different religious affiliations would treat the petitioner differently than they would treat any other defendant. See United States v. Hoffman, 806 F.2d 703, 710 (7th Cir. 1986), cert. denied, 481 U.S. 1005, 107 S. Ct. 1627, 95 L. Ed. 2d 201 (1987), reh'g denied, 481 U.S. 1060, 107 S. Ct. 2205, 95 L. Ed. 2d 859 (1987). In addition, although the entire transcription of the voir dire is not before the court, it is clear that the court took steps to insure that the panel of jurors did not harbor any feelings based on religious affiliation of the petitioner that would preclude it from deciding the case on a fair evaluation of the evidence presented. See document 23 of the record, at pp. 3-4; see also Hoffman, supra, 806 F.2d at 710-711. Since it is presumed that a jury is impartial and that it faithfully performed its duties, see, e.g., United States v. Winkle, 587 F.2d 705, 714 (5th Cir. 1979), cert. denied, 444 U.S. 827, 100 S. Ct. 51, 62 L. Ed. 2d 34 (1979); United States v. Eldred, 588 F.2d 746, 752 (9th Cir. 1978), and since petitioner has presented no specific evidence to rebut the presumption, the court concludes that, even if an objection would have been made, the admission would properly have been received into evidence. Thus, counsel cannot be found ineffective for failing to make a meritless objection. Hubbard, supra.4
The fifth claim of petitioner is that he was denied effective assistance of counsel in that his trial counsel elicited testimony from petitioner regarding petitioner's religious beliefs and affiliations. See document 1 of the record, para. 12(E). Petitioner makes specific reference to pages 479 and 480 of the trial transcript, see document 24 of the record, at pp. 479-480, and argues that this testimony was admitted in violation of 42 Pa.C.S.A. § 5902(b).
Petitioner claims that the testimony was irrelevant and that it was prejudicial in that it associated petitioner with a "minority religion" and with a group "dedicated to the overthrow of America by force and violence." See document 1 of the record, para. 12(E).
Addressing first petitioner's reliance on 42 Pa.C.S.A. § 5902(b), such reliance is misplaced. The Pennsylvania Supreme Court has rejected a use rule of reversible error in any case in which a reference to religious belief occurs; instead, "whether evidence, admitted in violation of a statute, actually deprives a defendant of his rights to a fair trial must be viewed in light of the attendant circumstances." Commonwealth v. Mimms, 477 Pa. 553, 559 n. 8, 385 A.2d 334, 336 n. 8 (1978); see also Commonwealth v. Rainey, 271 Pa. Super. 240, 246, 412 A.2d 1106, 1108-1109 (1979). The main purpose of the rule is to prohibit inflammatory questions that could "form in the minds of the jury bias and hostility toward [the defendant] and thus prevent an objective verdict." Commonwealth v. Hoskins, 485 Pa. 542, 556, 403 A.2d 521, 528 (1979); see also Commonwealth v. Brown, 247 Pa. Super. 401, 372 A.2d 887 (1977).
That purpose was not implicated by the testimony to which petitioner objects. During the Commonwealth's case in chief, several witnesses made reference to petitioner's affiliation with the religion of Islam. See, e.g., document 23 of the record, at pp. 178-179; document 24 of the record, at pp. 372-373, 403, 413-414. As petitioner himself testified, a small minority of the adherents to that religion, the "five percenters of Islam," subscribe to a violent philosophy. See document 24 of the record, at pp. 479-480. The line of questioning started by trial counsel and the testimony that petitioner himself volunteered was clearly meant to disassociate petitioner from that small violent minority. Far from prejudicing petitioner in the eyes of the jury, the testimony was elicited to eliminate any possible prejudice the jury might attach to the references by the Commonwealth's witnesses.
For these same reasons, counsel cannot be found to be ineffective for eliciting the testimony. It should be noted that the specific testimony to which petitioner refers was not drawn out by counsel but was volunteered by the petitioner. See id. In any event, it was certainly reasonable for counsel to attempt to divorce petitioner from any negative connotations associated with the term Muslim. Thus, it cannot be said that counsel was ineffective for initiating this line of questioning.
Petitioner's sixth, seventh, and eighth claims will be taken together. Petitioner's sixth claim is that he was denied effective assistance of counsel in that "trial counsel failed to challenge the admission of illegally obtained evidence." See document 1 of the record, at para. 12(F). Petitioner's seventh claim is that trial counsel was ineffective in failing to call witnesses to testify regarding the legality of the search and seizure at the Dixon apartment. See id., para. 12(G). Petitioner's eighth claim is that trial counsel was ineffective for failing to object "to the introduction and admission of highly prejudicial evidence having no relevancy to the instant case." See id., para. 12(H).
The court has previously held that petitioner does not have standing to challenge the search of Nellie Dixon's apartment. See supra at slip op., pp. 8-12. To the extent that petitioner's sixth, seventh, and eighth claims again raise the issue of the search and seizure, they are denied. Since plaintiff has no standing to contest the search, trial counsel cannot be found ineffective for failing to move to suppress the specific exhibits mentioned or to call witnesses to the search and seizure. To the extent that these claims deal with the admission of evidence involving the string of robberies as opposed to the specific incident at Mueller's Tavern, they will be discussed below in connection with petitioner's twelfth claim of error, which specifically covers this issue. See infra at slip op., pp. 25-26.
Petitioner's ninth claim is that he was denied effective assistance of counsel when trial counsel elicited testimony concerning a conviction for assault and robbery that had occurred over ten years prior to petitioner's trial in the instant case. A review of the transcript, however, reveals that counsel did not elicit the testimony in question; instead, petitioner volunteered the information in the course of a narrative response. The transcript reads as follows:
Q. Mr. Box, you indicated you have been trained as a welder. Where did you receive that training?
A. After I got out of the United States Navy under medical honorable discharge and which I had kidney problems I got in trouble at the age of seventeen. I was arrested for snatching a purse. I was sent to the California youth authority. This is a school where they rehabilitate young men. I was sent there. They sent me to the best school and the best instructors there was and I believe to be in the United States. This is where I got my profession at. This is where I was trained to become a welder and a draftsman there. I was rehabilitated.