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COMMONWEALTH PENNSYLVANIA v. EDWARD HAMILTON (03/28/88)

submitted: March 28, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD HAMILTON, APPELLANT



Appeal from the Judgment of Sentence of May 7, 1987 in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 2195, 2197 Sept. 1985.

COUNSEL

John N. Salla, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Olszewski, Watkins and Hoffman, JJ.

Author: Hoffman

[ 376 Pa. Super. Page 406]

This appeal is from the judgment of sentence for robbery and possession of an instrument of crime. Appellant first contends that trial counsel was ineffective for failing to call alibi witnesses. In addition, appellant contends that the trial court erred in (1) refusing to charge the jury that certain identification testimony should be received with caution; (2) improperly admitting hearsay testimony regarding the contents of certain police reports; (3) denying his motion for a mistrial after the prosecutor made a prejudicial remark during closing argument; (4) striking a prospective juror; and (5) denying his motion for a new trial on the ground that the verdict was against the weight of the evidence. For the reasons that follow, we affirm the judgment of sentence.

The charges in the instant case arose out of the robbery of a bar on May 7, 1985. On April 10, 1986, following a jury trial, appellant was found guilty of robbery and possession of an instrument of crime. Post verdict motions were

[ 376 Pa. Super. Page 407]

    timely filed. Appellant then filed a pro se petition for withdrawal of counsel, alleging ineffectiveness of trial counsel. Present counsel was appointed, and supplemental post verdict motions were filed which raised, inter alia, ineffective assistance of counsel claims. The trial court thereafter denied all post verdict motions, and appellant was sentenced to a ten-to-twenty-year term of imprisonment on the robbery charge, and a concurrent term of two-and-one-half-to-five-years imprisonment on the remaining charge. This timely appeal followed.

[ 376 Pa. Super. Page 408]

Appellant first contends that trial counsel was ineffective for failing to call alibi witnesses.*fn1 The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth Page 408} v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983). Second, if appellant's claim does have arguable merit, we must determine whether "the course chosen by counsel had some reasonable basis designed to serve the best interests of the client." Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel's ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra. Under Strickland, to prove that counsel's ineffectiveness resulted in prejudice, an appellant must show that the error was "so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable." Strickland v. Washington, supra at 686, 104 S.Ct. at 2063.

We have carefully reviewed the record (including the testimony of the proposed alibi witnesses) and the briefs submitted by the parties. For the reasons stated in the trial court opinion, we conclude that appellant's claim regarding alibi witnesses does not possess arguable merit. Accordingly, we affirm the ...


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