counsel were unreasonable, the defendant must show that they actually had an adverse effect on the defense.
More specifically, the Court in Strickland stated that a "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." 466 U.S. at 694. In other words, when a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. Id. at 695.
In making this determination, a court must consider the totality of the evidence and bear in mind that a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors, if any, on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. 466 U.S. 668, 696, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
The Court has examined the record of proceedings before it and has made inquiry, as is discussed below, as outlined by the Supreme Court in Strickland.
A. Refusal to allow impeachment of government witness with an unlawful entry conviction.
The petitioner claims that his trial counsel's performance was deficient within the meaning of Strickland when counsel failed, by not filing the appropriate post-trial motion, to preserve for appeal the trial court's refusal to allow the impeachment of Charles Dozier, a government witness with a conviction for unlawfully entering a building with the intent to commit a misdemeanor. This Court disagrees.
Here, the trial judge, as is described below, did not commit error by refusing to allow defense counsel to impeach Charles Dozier with this prior conviction; as this conviction was not crimen falsi.
Moreover, even assuming pro arguendo that Dozier's prior conviction was crimen falsi, no prejudice resulted to the defendant from the trial court's refusal to allow this line of cross-examination. As is described in more detail below, defense counsel's cross-examination of Charles Dozier was effective. Additionally, there is substantial evidence in the record other than Dozier's testimony to support the jury's guilty verdict. It necessarily follows that defense counsel's failure to raise this alleged error post-trial did not violate the petitioner's constitutional right to the effective assistance of counsel.
1. Crimes Involving Dishonesty or False Statement
The threshold question that this Court must decide is whether Charles Dozier's conviction for unlawfully entering a building with the intent to commit a misdemeanor constitutes a crime involving dishonesty or false statement. In Pennsylvania a witness may be impeached only with convictions of this type.
See Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied 456 U.S. 980, 72 L. Ed. 2d 857, 102 S. Ct. 2251 (1982); Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978); Commonwealth v. Futch, 469 Pa. 422, 366 A.2d 246 (1976); Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973). This rule pertains because the avowed purpose of such impeachment is to attempt to cast doubt upon the witness' ability to speak the truth. See Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).
When deciding whether a prior conviction involves dishonesty or false statement, the Pennsylvania Supreme Court in the Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), explained that lower courts should focus on both the nature of the offense and the manner of its accomplishment before dubbing it one involving dishonesty or false statement. See id. at 367 and n.4.
Using the crime of larceny for purposes of illustration, the Court remarked that:
"a larceny accomplished by stealth or misrepresentation bears more directly upon [a witness'] veracity than [does] a taking by force . . ."