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filed: March 31, 1989.


Appeal from the Judgment of Sentence Entered February 11, 1988, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. 8610624.


Michael J. Healey, Pittsburgh, for appellant.

Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.

Kelly, Popovich and Hester, JJ.

Author: Hester

[ 383 Pa. Super. Page 411]

This is an appeal from the judgment of sentence of life imprisonment imposed February 11, 1988, following appellant's conviction of first-degree murder for the shooting death of Melvin Hudson. Appellant, James Rivers, obtained new counsel following his trial; consequently, the issues raised on this direct appeal concern trial counsel's ineffectiveness. A hearing on the ineffectiveness claims was held February 11, 1988, just prior to denial of post-trial and supplemental post-trial motions and imposition of sentence. We affirm.

[ 383 Pa. Super. Page 412]

Various people in Stormy's Cafe on the evening of September 26, 1986, witnessed one or more of the following events: appellant arguing with Melvin Hudson; appellant leaving the bar; appellant returning to the bar with a rifle; appellant summoning Hudson to the street; and appellant then shooting Hudson with the rifle.

On the evening of the murder, appellant met his long-time friend Richard Alston at Stormy's Cafe, which is located near appellant's home in Rankin, Pennsylvania. Together they visited appellant's girl friend at her apartment. While there, appellant displayed a .22 caliber rifle, loaded it, and stated that he was angry with Melvin Hudson and that "he could get him anytime he felt like it." Notes of Testimony ("N.T."), 3/16-18/86, at 36. Later, appellant returned to Stormy's and shot Hudson. Appellant was arrested twenty minutes after shooting Hudson. At trial, appellant's defense was that he was provoked and was operating under the influence of alcohol and drugs, in an attempt to reduce the degree of murder.

Appellant's first allegation on appeal is that trial counsel was ineffective for "frustrating" his desire to testify at trial.

In reviewing appellant's claims of trial counsel's ineffectiveness, we are guided by a well-established standard, recently repeated by the supreme court in Commonwealth v. Hentosh, 520 Pa. 325, 333-334, 554 A.2d 20, 24 (1989):

[ 383 Pa. Super. Page 413]

Approaching our task of determining whether counsel's assistance was effective we initially presume that it was. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Then, in analyzing a defendant's claim, we examine whether the claimant's allegations are possessed of arguable merit. Pierce, supra; Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Maroney, supra. We next determine whether of the alternatives available to counsel in presenting the defense those chosen were possessed of a reasonable basis in effecting his client's interests. Id.; Commonwealth Page 413} v. Wade, 501 Pa. 331, 461 A.2d 613 (1983). Assuming positive resolution of both inquiries above, we require finally that the claimant demonstrate how the asserted ineffectiveness prejudiced his cause. Pierce, supra; Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984).

In conducting this analysis it is important to bear in mind that allegations of the deprivation of the right to effective representation of counsel are not self-sustaining. The burden of proof of the allegations remains with the claimant, their accuracy still to be established by his submission of relevant proofs. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Maroney, supra.

520 Pa. at 333-334, 554 A.2d at 24.

We commented on the issue of trial counsel's ineffectiveness in the context of a defendant's failure to testify:

The decision whether to testify in one's own behalf is ultimately to be made by the accused after full consultation with counsel . . . . In order to support a claim that counsel was ineffective for not "putting" the appellant on the witness stand, the appellant must demonstrate either that (1) counsel interfered with his client's freedom to testify, or (2) he gave specific advice so ...

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