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December 30, 1987

Alfred Roach
Charles H. Zimmerman, and The Attorney General of the State of Pennsylvania and The District Attorney of Philadelphia

The opinion of the court was delivered by: HANNUM

 Hannum, S.J.

 Presently before the Court is the petition of Alfred Roach for a writ of habeas corpus. For the reasons discussed below, this Court will deny the petition for a writ of habeas corpus.


 In the Court of Common Pleas of Philadelphia County, a jury found petitioner guilty of murder in the first degree, and of possessing an instrument of crime, both offenses resulting from the shooting death of Maurice Dozier. There were several eyewitnesses to this incident. Moreover, the petitioner also testified that he had shot the victim several times. *fn1" A sentence of life imprisonment was imposed for the murder conviction and a suspended sentence was imposed for possessing an instrument of crime.

 Through trial counsel, petitioner filed a direct appeal from the judgment of sentence for first-degree murder to the Pennsylvania Supreme Court. On appeal the petitioner contended:

 1) that the Commonwealth (of Pennsylvania) created a prejudicial atmosphere at trial by suggesting to the jury that the homicide was a collective or "gang" deed;

 2) that the Commonwealth improperly included irrelevant and personal inquiries in the cross-examination of the principal defense witness; and

 3) that the Commonwealth was allowed to introduce improper rebuttal testimony that the deceased's mother called the deceased to tell him she had talked with petitioner's sister.

 The Pennsylvania Supreme Court affirmed the judgment of sentence in a per curiam decision holding that the petitioner had waived these claims because these three issues were not raised in appellant's written post-verdict motions, as required by Pennsylvania Rule of Criminal Procedure 1123(a). Petitioner's post-verdict motions, the Pennsylvania Supreme Court explained, consisted solely of standard boiler plate challenges to the weight and sufficiency of the evidence, which were meritless. Commonwealth v. Roach, 477 Pa. 379, 383 A.2d 1257 (1978).

 Subsequently, petitioner represented by new counsel, filed a petition for relief under Pennsylvania's Post Conviction Hearing Act (hereinafter "PCHA"), challenging trial counsel's effectiveness. After a hearing on the petition, relief was denied. The Pennsylvania Supreme Court affirmed the order denying PCHA relief. Commonwealth v. Roach, 495 Pa. 669, 435 A.2d 1216 (1981).

 Thereafter, petitioner, represented by new counsel, filed yet another petition for PCHA relief. This petition was also denied after a hearing. The Pennsylvania Superior Court affirmed the denial. A subsequent Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court on August 9, 1985. Subsequently, defendant filed the instant petition for a writ of habeas corpus.

 The petitioner seeks a writ of habeas corpus on the ground that his Sixth Amendment right to the effective assistance of counsel was violated during both the criminal and the post-conviction proceedings. As an initial matter, petitioner charges that trial counsel's failure to file proper post-trial motions stripped him of grounds upon which he could challenge his criminal convictions. Specifically, petitioner contends that the trial court's refusal to allow the defendant to impeach the testimony of a government witness with a prior conviction for unlawful entry should have been advanced by trial counsel by way of post-trial motion. This, petitioner contends, would have preserved the legal issue for appeal. In the same regard, petitioner also charges that trial counsel failed to raise an objection to an alleged misstatement of the law made by the prosecutor during summation.

 Finally, apart from the alleged ineffective assistance of counsel, petitioner charges that he was denied his constitutional right to litigate the various errors of law committed in the trial court when he was denied the right to file post-verdict motions nunc pro tunc. The Court will now examine the petitioner's contentions.

 I. The Effective Assistance of Counsel.

 The Sixth Amendment guarantees that an accused shall enjoy the right "to have the Assistance of Counsel for his defence." Federal courts have long recognized that an accused must receive the effective assistance of counsel if this promise of the Sixth Amendment is not to be an empty one. See McMann v. Richardson, 397 U.S. 759, 771, 25 L. Ed. 2d 763, 90 S. Ct. 1441 n. 14 (1970). In those cases, such as the one at bar, where a convicted defendant presents a claim of "actual ineffectiveness," courts, state and federal, must determine whether the effective assistance of counsel had forthcome. This determination must be made in accordance with the guidelines set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

 In Strickland, the Supreme Court instructed lower courts that the test used for analyzing claims of actual ineffectiveness has two components. First, a court must determine whether counsel's performance was deficient. Second, a court must determine whether the allegedly deficient performance was prejudicial to the accused's defense. A defendant claiming ineffectiveness bears the burden of establishing both deficient performance and prejudice. A defendant's failure to make both showings will restrain a court from concluding that the conviction resulted from a breakdown in the adversary process that renders the result of the criminal proceedings unreliable. *fn2" Each prong of the Strickland test will now be discussed in more detail.

 Deficient Performance

 Regarding counsel's performance, the Supreme Court in Strickland stated that the Sixth Amendment demands that a defendant receive reasonably effective assistance from his lawyer in defending against criminal charges. Reasonably effective assistance was defined by the Court as performance by an attorney that is reasonable under prevailing professional norms. The Court further commented that:

Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.

 Id. at 688-89.

 The Court in Strickland then cautioned courts of the difficulties inherent in making an evaluation of counsel's performance and then stated that "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id.


 Actual ineffectiveness claims alleging a deficiency in attorney performance are also subject to, as described at the outset, a general requirement that the defendant affirmatively prove prejudice. Thus, even if a defendant shows that particular errors of counsel were unreasonable, the ...

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