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filed: December 12, 1988.


Appeal from the PCHA in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 276-279 AUG 1971.

Tamilia, Watkins, and Montgomery, JJ.

Appellant Leon James appeals an Order of August 27, 1987 which denied his petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. 9541 et seq. He raises four issues of ineffectiveness of all previous trial, appellate and PCHA counsel, and an issue that the PCHA court erroneously declined to give him relief he sought on the basis of after-discovered evidence.

Initially, in October 1972, a jury found appellant guilty of first degree murder, burglary, aggravated robbery, assault and battery. He was sentenced to life imprisonment, however, the Supreme Court granted a joint petition for remand and he was given a new trial. In June of 1975 he was again adjudged guilty of all of the charges listed above, and he was given the same sentence. In 1978, upon his direct appeal filed by new counsel this Court affirmed judgment of sentence. Appellant then filed two pro se PCHA petitions, and, after obtaining new counsel, an amended petition. Later, another PCHA counsel filed a supplemental amended PCHA petition. After denial of PCHA relief on August 27, 1987, he was granted the right to appeal nunc pro tunc to this Court on June 3, 1988. This appeal was granted pursuant to a PCHA petition alleging that prior appellate counsel had failed to prove a timely briefing schedule in the Superior Court on an earlier appeal, resulting in its dismissal.

On appeal appellant raises the same issues which the trial court addressed in its Opinion dated August 27, 1987. Our standard of review in matters of ineffectiveness follows.

[I]n order to establish a claim of ineffectiveness, appellant must establish that: by act or omission counsel was arguably ineffective; counsel's act or omission could not have had a reasonable basis designed to effectuate appellant's interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (1987); see also Commonwealth v. Johnson, Pa. , , 532 A.2d 796, 799 (1987). ('The standard of review is that there must be a reasonable probability that but for counsel's unprofessional errors, the result of the trial would have been different.').

Commonwealth v. Petras, Pa. Super. , , 534 A.2d 483, 485 (1987).

Appellant's first allegation of ineffectiveness is that all previous counsel were ineffective for failure to make objections and preserve the issue of prejudicial references as to the first trial, made at the second trial, specifically: 1) defense counsel's asking a Commonwealth witness if she*fn1 remembered testifying at a trial before, and 2) defense counsel's eliciting from the decedent's brother, Henry Cooper, the statement, "I identified them in the Courtroom on your last trial." (See N.T., 6/12/75, p. 81 et seq., and N.T., 6/13/75, p. 63). We agree with the trial court that these questions, especially viewed in the context of the examination, did not so prejudice the appellant as to affect the outcome of the case. Thus, we find no error in the court's determination that prior counsel were not ineffective as to the first claim advanced by appellant.

As to appellant's second and fourth allegations of ineffectiveness, we agree with the trial court that previous counsel were not ineffective for failing to preserve what would have been baseless claims. See Commonwealth v. Williams, ___ Pa. Super. , 538 A.2d 557 (1988). In his second issue, appellant claims his previous counsel should have objected to and preserved the issue of prosecutorial misconduct in closing remarks. The remarks consist of three instances as follows. First, the prosecutor stated:

There was information in that statement that I thought the defendant had a right to have in front of you. That's why I offered that statement.

The statement was part of my file and I represent the Commonwealth of Pennsylvania and I have an obligation to try the case fairly. That is why you found out about that statement . . . . I thought that was a fair way to try the case.

(N.T. 6/17/75, pp. 59-60). Second, appellant says the prosecutor made reference to a "notorious crime"; and third, he says the prosecutor stated co-defendant Daniel Cronin was presently in jail as a result of the crime for which appellant was being tried. A review of the record does not reveal this last statement; rather, it shows the prosecutor referred to the testimony. of Donna Vandeveer Cronin, and said, "She is married to Daniel Cronin, who is now, as she testified, in Graterford State Correctional Institution." (N.T. at p. 66).

Although a prosecutor's statement may not be appropriate, a new trial will not be granted unless the unavoidable effect of the prosecutor's remark is to prejudice the jury, "forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict." Commonwealth v. Stoltzfus, Pa. , , 337 A.2d 873, 882 (1975); see also Commonwealth v. Maxwell. The prejudicial effect of the prosecutor's remarks must be evaluated in the context in which they were made. Commonwealth v. Chimenti, Pa. Super. , 524 A.2d 913 (1987). Here, we agree with the trial court that there was nothing so improper or prejudicial about the prosecutor's remark so as to warrant the award of a new trial, and counsel were not, therefore, ineffective for failure to pursue this issue.

With regard to appellant's fourth allegation or error, i.e., counsel were ineffective for failure to request a jury instruction as to the second part of the Kloiber charge,*fn2 and to pursue this on appeal, we agree with the trial court that the issue is totally devoid of merit, since the charge sought was, in fact, given to the jury. See N.T. 6/17/75 at p. 110. Thus, counsel were not ineffective for failing to pursue this claim which is without arguable merit.

Appellant's third allegation of ineffectiveness is that all previous counsel failed to raise and preserve the issue of voluntariness of his confession. He alleges he was interrogated by police in a small room for over four and one-half hours and was beaten by members of the Philadelphia Police Department. Judge Kalish, in ruling on appellant's motion to suppress statements, made findings of fact to the effect that appellant, while adequately apprised of his constitutional rights and voluntarily and intelligently choosing to waive such rights, gave an informal and, later, a formal statement to detectives, and at no time was his will overborne; all confessions were the product of an essentially free and unrestrained choice on the part of appellant. See Slip Op., Kalish, J., 8/8/72, pp. 3-4. Upon reconsideration, Judge Kalish by an Order dated May 30, 1975 again denied appellant's motion to suppress statements. We acknowledge this Court is "bound by the suppression court's findings of fact which are supported by the record." Commonwealth v. Haynos, Pa. Super. , , 525 A.2d 394, 395 (1987) allocatur denied, Pa. , 536 A.2d 1329 (1988). Thus, we agree with the trial court's decision that counsel was not ineffective for failure to pursue a claim devoid of arguable merit. See Williams, supra. Appellant also contends previous counsel were ineffective for failure to raise the unnecessary delay between his arrest and arraignment as the reason he gave his statement. The record shows appellant voluntarily appeared at the police administration building on May 8, 1971, was taken into custody around 8:20 p.m., and gave a formal statement after 11:30 p.m. See Slip Op., 8/8/72 at p. 3. This does not present an unnecessary delay; however, assuming ad arguendo the delay was unnecessary, we can detect no prejudice to appellant since the confession was obtained within three and one-half hours of the time when appellant was taken into custody and the confession was made of appellant's free will. Accordingly, we find counsel was not ineffective in failing to challenge the confession for any pre-arraignment delay. See Commonwealth v. Johnson, Pa. , 532 A.2d 796 (1987).

Lastly, appellant urges the PCHA court erred in denying his request for a new trial which he based upon alleged after-discovered evidence. The alleged after-discovered evidence here is that appellant was suffering from PCP induced intoxication. He urges testimony by his co-defendant William Flynn at the PCHA hearing established appellant was unsuspectingly given PCP laced joint, which he smoked, and which caused him to act like a zombie during the hold-up. In order to establish that a new trial is warranted on the basis of after-discovered evidence, four criteria must be met: 1) the evidence must have been discovered after the trial, 2) it must have been such that it could not have been obtained at the trial by reasonable diligence, 3) it must not be cumulative or merely impeach credibility, and 4) it must be such as would compel a different result. See Commonwealth v. Mileshosky, Pa. Super. , 504 A.2d 278 (1986) (citing Commonwealth v. Schuck, 401 Pa. 22, 164 A.2d 13 (1960)).

We agree with the trial court's decision that the evidence proffered by appellant does not meet this standard, since he was aware that he had been under the influence of drugs at the time of the crime and stated such in his statement to the police at the time of arrest. The trial court stated in its Opinion:

[I]t is quite obvious from the record that the defendant admitted to the police at the time of his arrest that he had been smoking marijuana and using pills before the robbery and murder. Thus, the defendant was apparently aware of his own mental condition or alleged mental condition from the very outset of the criminal proceedings against him.

Nevertheless, at his second trial the defendant chose to defend himself by creating a reasonable doubt about his participation in the crime. He did not go forward to the jury by admitting his perpetration of the crime but contending or claiming that he had diminished faculties at that time. In short, both defendant and his counsel who had represented the defendant at both of his trials knew that the defendant had ingested intoxicating substances prior to the commission of the crime, but both chose not to pursue that avenue of defense. Thus, the defendant can not [sic] now contend that evidence of his alleged diminished capacity constitutes after discovered evidence. See Commonwealth vs. Hugney, 420 A.2d 422 (1980).

Slip Op., O'Keefe, J., 8/27/87, pp. 9-10.

Our standard of review in this instance is "[u]nless there has been a clear abuse of discretion, refusal by the court to grant a new trial on the basis of after-discovered evidence will not be disturbed." Commonwealth v. Benson, Pa. Super. , , 463 A.2d 1123, 1125 (1983). Here, since the fact that appellant was acting under the influence of marijuana was available to the appellant at the time of trial, we find no clear abuse of discretion on the part of the trial court in denying the motion for new trial which was based on after-discovered evidence.

Order affirmed.


Order affirmed.

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