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COMMONWEALTH PENNSYLVANIA v. GARNET SMITH (05/16/88)

submitted: May 16, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
GARNET SMITH, APPELLANT



Appeal from a Judgment of Sentence of July 28, 1987 in the court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 8503-3218 & 3220.

COUNSEL

Mitchell S. Strutin, Philadelphia, for appellant.

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

Cavanaugh, Montgomery and Hoffman, JJ.

Author: Hoffman

[ 380 Pa. Super. Page 622]

This appeal is from the judgment of sentence for murder in the first degree and possession of an instrument of crime. Appellant contends that the trial court erred in refusing to permit trial counsel to file supplemental reasons in support of post-trial motions. In addition, appellant raises nine claims of ineffective assistance of trial counsel. For the reasons that follow, we affirm the judgment of sentence.*fn1

On January 20, 1985, appellant was arrested and charged in connection with the November 20, 1980 shooting death of Rodney Smith. On December 3, 1986, following a jury trial, appellant was found guilty of murder in the first degree and possession of an instrument of crime. Post-verdict motions were filed and denied. On July 27, 1987, appellant was sentenced to a life term of imprisonment on the murder charge, to be followed by a consecutive term of two-and-one-half-to-five-years for possession of an instrument of crime. This appeal followed, and new counsel was appointed to prosecute the appeal.

I. ALLEGED TRIAL COURT ERROR

Appellant first contends that the trial court erred in refusing to permit trial counsel to file supplemental reasons in support of post-trial motions. The facts related to this claim are as follows. On December 11, 1986, appellant filed timely post-trial motions in which he raised challenges to the sufficiency and weight of the evidence,*fn2 and reserved the right to file supplemental motions. Thereafter, at the July 27, 1987 hearing on post-trial motions, appellant attempted

[ 380 Pa. Super. Page 623]

    to file supplemental motions. These motions were contained in a 53 page document, and included some 130 specifications of error. The trial court refused to accept the supplemental motions, noting in its opinion that "Defendant had not requested leave to hand up 130 supplemental reasons for post verdict relief, he had merely inserted a line in the original post trial motions hoping to alert the Court to his desire to argue further reasons for relief." Trial Court Opinion at 4.

We note that "a defendant may be granted leave to file additional reasons for a new trial or in arrest of judgment but this is a matter of discretion with the trial court." Commonwealth v. Pyett, 372 Pa. Super. 291, 294, 539 A.2d 444, 445 (1988) (citing Commonwealth v. Talley, 456 Pa. 574, 318 A.2d 922 (1974)). We need not determine whether the trial court abused its discretion in refusing to accept the supplemental motions, because we are satisfied that appellant was not prejudiced by the ruling. Appellant is presently represented by counsel other than trial counsel, and thus "the issue of trial counsel's effectiveness may now be raised in this direct appeal." Commonwealth v. Holmes, 482 Pa. 97, 105 n. 3, 393 A.2d 397, 401 n. 3 (1978). In fact, appellant has raised numerous instances of trial error, and has alleged that trial counsel was ineffective for failing to preserve these issues in post-trial motions.*fn3 Because the claims related to trial error are cognizable on this direct appeal, see id., appellant was not prejudiced by the trial court's ruling on his supplemental motions.

II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

Appellant next raises nine claims of ineffective assistance of counsel. The determination whether counsel

[ 380 Pa. Super. Page 624]

    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 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 interests of his [or her] client." Commonwealth v. Buehl, supra (citations omitted).

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.

In this analysis, counsel is presumed to be effective, Commonwealth v. Norris, 305 Pa. Super. 206, 210, 451 A.2d 494, 496 (1982), and appellant bears the burden of establishing that trial counsel was ineffective. Commonwealth v. Jones, 298 Pa. Super. 199, 205, 444 A.2d 729, 732 (1982). Moreover, in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981) our Supreme Court noted that,

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude

[ 380 Pa. Super. Page 625]

    that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id., 492 Pa. at 563, 424 A.2d at 1335.

A.

Appellant first argues that trial counsel was ineffective for failing to preserve a claim related to the admission of a Commonwealth witness's pretrial hearing testimony and the contents of a prior statement that the witness had given to police. The facts related to this claim are as follows. On March 14, 1984, Robert Smithson gave a statement to police Detective Kenneth Curcio, in which he identified appellant as the person who shot the victim, Rodney Smith. See N.T. November 19, 1986 at 6-8. Later, at a pretrial hearing, Smithson recanted this statement, asserted that appellant "was an innocent man", and implicated himself as the killer. See N.T. January 30, 1986 at 12-13. At trial, the Commonwealth attempted to call Smithson as a witness. See N.T. November 17, 1986 at 156. Smithson, however, testified in camera that if called he would invoke his fifth amendment privilege against self-incrimination. Id. at 164-66. After the trial court instructed the jury that Smithson was unavailable, the Commonwealth introduced Smithson's sworn testimony from the pretrial hearing, in which Smithson had recanted his original statement to police and implicated himself in the killing. See N.T. November 18, 1986 at 134-40. To impeach this testimony, the Commonwealth then introduced, through Detective Curcio, Smithson's March 14, 1984 statement to police, in which he identified appellant as the gunman. See N.T. November 19, 1986 at 6-8. Appellant argues that both the pretrial hearing testimony and the statement to police were inadmissible, and that trial counsel was ineffective for failing to preserve a claim related to the admission of this evidence.

With regard to the admissibility of Smithson's sworn pretrial hearing testimony, it is settled that an unavailable witness's testimony from a prior judicial proceeding is admissible

[ 380 Pa. Super. Page 626]

    at trial, "provided the defendant had counsel and a full opportunity to cross-examine the witness during the earlier proceeding." Commonwealth v. Sandutch, 498 Pa. 536, 540, 449 A.2d 566, 567 (1982) (plurality opinion), reargument denied; Commonwealth v. Scarborough, 491 Pa. 300, 317, 421 A.2d 147, 155 (1980); Commonwealth v. Bellachio, 296 Pa. Super. 468, 474, 442 A.2d 1147, 1149-50 (1982), allocatur denied. Moreover, "'[a] witness who invokes the privilege against self-incrimination is "unavailable" for purposes of the hearsay exception permitting the introduction of the notes of his testimony from a prior judicial proceeding.'" Commonwealth v. Sandutch, supra (quoting Commonwealth v. Rodgers, 472 Pa. 435, 453, 372 A.2d 771, 779 (1977) (plurality opinion)).

At the pretrial hearing in the instant case, appellant was present, represented by counsel, and was given and exercised the opportunity to cross-examine Robert Smithson. N.T. January 30, 1986 at 18-19. At trial, Smithson rendered himself unavailable by invoking his privilege against self-incrimination. Because Smithson was unavailable as a witness, and because appellant had a full opportunity to cross-examine Smithson at the pretrial hearing, the trial court did not err in allowing the Commonwealth to introduce Smithson's testimony from the pretrial proceeding. Commonwealth v. Sandutch, supra; Commonwealth v. Bellachio, supra. Accordingly, appellant's claim that counsel was ineffective for failing to preserve a claim based upon the introduction of this evidence lacks arguable merit.

With regard to the admissibility of Smithson's prior statement to police, appellant argues that the "mere fact that the witness was declared unavailable and the Commonwealth was permitted to introduce his testimony from the pretrial proceeding, does not provide a basis upon which the content of the witness's statement could be introduced." Brief for Appellant at 33. We disagree. Prior recorded testimony, like any other testimony, is subject to impeachment through introduction of prior ...


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