Appeal from the Post Conviction Relief Act, October 2, 1986 in the Court of Common Pleas of Philadelphia, Criminal Division, at No. 8003-1501-1517.
Mark J. McCarriston, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Olszewski, Beck and Hoffman, JJ.
[ 385 Pa. Super. Page 514]
This is an appeal nunc pro tunc from an order below denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551.*fn1 Appellant contends that the PCHA court should have granted his petition because trial counsel was ineffective for failing to file a motion to suppress his post-arrest statement to the police. Additionally, appellant contends that his prior appellate counsel was ineffective for failing to raise the ineffectiveness of trial counsel. We disagree, and for the reasons that follow, we affirm the order below.
[ 385 Pa. Super. Page 515]
Following a jury trial, on June 27, 1980, appellant was convicted of rape, kidnapping, two counts of involuntary deviate sexual intercourse (hereinafter "IDSI"), criminal conspiracy and two counts of simple assault. After denying post-verdict motions, on September 16, 1980, the court sentenced appellant to consecutive terms of imprisonment of four-to-eight years for one count of IDSI, three-to-six years for the second count of IDSI, three-to-six years for rape and two-to-five years for conspiracy. Appellant filed a pro se petition for reconsideration of sentence which was denied by the court. Thereafter, appellant appealed to this Court. This Court affirmed the judgments of sentence on February 26, 1982. See Commonwealth v. Adams, 296 Pa. Super. 24, 442 A.2d 277 (1982). On April 7, 1983, appellant filed a petition under the PCHA. Counsel was appointed and an evidentiary hearing was held to determine whether appellant had received effective assistance from prior counsel. On October 2, 1986, the PCHA court denied appellant's petition. Appellant then appealed to this Court, which dismissed his appeal due to procedural defects on April 14, 1987. Appellant with the aid of newly appointed counsel filed an amended petition under the PCHA. This appeal followed an order by the court granting appellant permission to appeal its October 2, 1986 order nunc pro tunc.
The law governing ineffective assistance of counsel claims was recently summarized by our Supreme Court as follows:
There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings.
[ 385 Pa. Super. Page 516]
Q. And can you tell the Court how you were feeling at that time, what your general health was at that time?
A. Well, I had been drinking all that day and I was intoxicated when the detective came up and arrested me.
Q. If you recall, how much had you been drinking that day?
A. I was drinking heavy, a whole lot, as a matter of fact, like I say, I been drinking all day long and how much I couldn't actually say but I know it was a lot.
Q. Do you recall what you were drinking?
A. Yes, I do. I was drinking some vodka, wine, beer and I had been drinking gin.
Q. Were these in large bottles, small bottles?
Q. And at a subsequent date did you have a meeting with someone from the Defender Association or with Mr. Stanshine [trial counsel] to discuss your case?
A. I didn't talk to Marty Stanshine until we was getting ready to start trial and that was the only time I talked to him during that time I was letting him know when the police had come out and arrested me I had been ...