Appeal from the PCHA Order of February 9, 1988 in the Court of Common Pleas of Montgomery County, Criminal Division, at No. 88-83.
J. David Farrell, Norristown, for appellant.
Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.
Melinson, Hoffman and Hester, JJ.
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This is an appeal from an order denying appellant's petition under the Post Conviction Hearing Act (PCHA), 42
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Pa. C.S.A. §§ 9541-9551. Appellant contends that counsel was ineffective for failing to (1) impeach the Commonwealth's witness with his prior inconsistent statements by using the notes of testimony from appellant's first trial; (2) investigate the scene of the alleged crime and object to an inaccurate diagram of the scene used by the Commonwealth during the trial; (3) request a polling of the individual jurors; and (4) move for a mistrial after it was discovered that a juror and the prosecutor had contact during the trial.*fn1 For the reasons set forth below, we affirm the order of the PCHA court.
Appellant was arrested and charged with robbery, 18 Pa. C.S.A. § 3701, theft by unlawful taking, 18 Pa. C.S.A. § 3921, and criminal conspiracy, 18 Pa. C.S.A. § 903. Appellant was found guilty by a jury of the aforementioned offenses. Appellant filed a motion for a new trial, which was granted. Following his second jury trial, appellant was again convicted on all charges. Post-trial motions were filed, argued, and denied. Appellant was sentenced to an aggregate term of imprisonment of thirty-four-to-sixty-eight-months. No appeal was taken from the judgment of sentence. Approximately two years later, appellant filed a pro se PCHA petition. PCHA counsel was appointed and an amended PCHA petition was filed. Following a hearing, appellant's petition was dismissed. This appeal followed.
To determine whether counsel rendered ineffective assistance, a two-prong test is employed. First, we must
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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 best interests of his [or her] client." Commonwealth v. Buehl, 510 Pa. at 378, 508 A.2d at 1171 (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, 515 Pa. at 159, 527 A.2d at 976. 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, 466 U.S. at 687, 104 S.Ct. at 2064. Furthermore, in reviewing claims of ineffective assistance of counsel, it should be noted that counsel is presumed effective, and appellant bears the burden of proving that counsel was ineffective. Commonwealth v. Petras, 368 Pa. Super. 372, 375, 534 A.2d 483, 484 (1987).
Appellant initially contends that trial counsel was ineffective for not impeaching the Commonwealth's witness, Fred Lynch, an alleged co-conspirator, by confronting him with the notes of testimony from appellant's first trial. Appellant argues that, at the second trial, the witness substantially altered his testimony regarding how the money from the robbery was to be divided among the participants
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from the testimony he gave at appellant's first trial. Specifically, appellant argues that had counsel ordered the notes of testimony from the first trial, counsel would have been able to confront the witness with prior inconsistent testimony.
Our first inquiry is to determine if appellant's claim has arguable merit. A review of the record reveals that counsel in fact did cross-examine Fred Lynch about his contradictory testimony. At appellant's first trial, Fred Lynch testified that the money from the robbery was to be split equally among his cohorts. N.T. January 19, 1984 at 63. During appellant's second trial, when the prosecutor questioned him about the plan to divide the profits from the robbery, Fred Lynch responded that after he took his "cut" the remainder would be split between his cohorts. On cross-examination, appellant's counsel questioned Fred Lynch extensively about his conflicting testimony.
Q. Say you got money how were you going to divide it?
[WITNESS (FREDDIE LYNCH)]
A. I would have got the most because I went ...