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COMMONWEALTH PENNSYLVANIA v. REGINALD HUNTER (02/14/89)

filed: February 14, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
REGINALD HUNTER, APPELLANT



Appeal from the Judgment of Sentence of March 12, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 0033-0039 March 1983.

COUNSEL

Norris E. Gelman, Philadelphia, for appellant.

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

Brosky, Montgomery and Hoffman, JJ.

Author: Hoffman

[ 381 Pa. Super. Page 501]

This appeal is from the judgment of sentence for terroristic threats, rape, burglary, theft by unlawful taking, simple assault and indecent assault. Appellant contends that trial counsel was ineffective for (1) moving for a mistrial; (2) failing to consult him prior to moving for a mistrial; (3) failing to urge his discharge on double jeopardy grounds prior to his second trial; and (4) failing to argue at the suppression hearing that appellant's mother should not have served as an "interested adult" because she had a conflict of interest. We disagree, and for the reasons that follow, we affirm the judgment of sentence.

On February 3, 1983, appellant was arrested and charged with terroristic threats, 18 Pa.C.S.A. § 2706, rape, id. § 3121, burglary, id. § 3502, theft by unlawful taking, id. § 3921, simple assault, id. § 2701, and indecent assault, id. § 3126. Appellant filed a motion to suppress, which was denied by the court below. The jury was sworn on March

[ 381 Pa. Super. Page 50213]

, 1984 and the trial began. On March 16, while the jury was deliberating, a juror failed to appear because of illness, and the court granted a mistrial upon motion of appellant.

The Commonwealth then elected to retry appellant. On July 9, 1984, appellant again filed a motion to suppress, and the court denied the motion. After a jury trial, appellant was found guilty of each of the charges. Post-verdict motions were filed and denied. Appellant was sentenced to an aggregate term of imprisonment of nine-and-one-half-to-nineteen years.*fn1 Thereafter, appellant filed an appeal with this Court, but his appeal was dismissed for failure to file a brief. Represented by new counsel, appellant sought relief under the Post Conviction Hearing Act (PCHA), §§ 42 Pa.C.S.A. 9541-51 (repealed).*fn2 On June 22, 1988, the court below granted appellant the right to appeal nunc pro tunc. This appeal followed.

Because appellant's first two contentions are closely intertwined, they will be taken together. Appellant argues that trial counsel was ineffective for (1) moving for a mistrial; and (2) failing to consult appellant prior to moving for a mistrial. The determination whether counsel rendered ineffective assistance is reached through a two-prong test. First, we must ascertain whether the issues underlying the claims of ineffectiveness have arguable merit. See 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. See Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if appellant's claims do have arguable merit, we must determine whether the "course chosen by counsel had some

[ 381 Pa. Super. Page 503]

    reasonable basis designed to serve the best interests of his [or her] client." Commonwealth v. Buehl, 510 Pa. at 378, 508 A.2d at 1174. 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. See Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987). For this purpose, 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 976-77. Under Strickland, to prove that counsel's ineffectiveness resulted in prejudice, an ...


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