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COMMONWEALTH PENNSYLVANIA v. JAMES DURST (05/30/89)

decided: May 30, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JAMES DURST, APPELLEE



Appeal from the Order of the Superior Court Entered on August 27, 1987, at No. 951 Pittsburgh, 1986 Vacating the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, Entered at Nos. 213 of 1986 and 979 of 1985 on June 18, 1986. 370 Pa. Superior Ct. 645, 533 A.2d 1073 (1987)

COUNSEL

William R. Cunningham, Dist. Atty., Ernest J. DiSantis, Asst. Dist. Atty., Erie, for appellant.

David L. Hunter, Erie, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., concurs in the result. Zappala, J., dissents.

Author: Papadakos

[ 522 Pa. Page 3]

OPINION OF THE COURT

This is an appeal taken by the Commonwealth (Appellant) from the memorandum opinion and per curiam order of the Superior Court which vacated the judgment of sentence imposed on James Durst (Appellee). Appellee was tried and convicted in a non-jury trial before the Honorable Shad Connelly, Judge of the Court of Common Pleas of Erie County, on charges of indecent assault and corruption of minors. Post-trial motions were filed by Appellee and, upon

[ 522 Pa. Page 4]

    their denial, the trial court imposed a sentence of two and one-half to five years imprisonment on the corruption of minors charge, and a consecutive sentence of one to two years imprisonment on the indecent assault charge.

On direct appeal to the Superior Court, Appellee's newly appointed counsel challenged counsel's effectiveness in not interviewing various witnesses whose testimony could have been exculpatory and Appellee further contended that his trial counsel had no reasonable basis for failing to so act. Upon reviewing Appellee's claims, the Superior Court concluded that insufficient evidence existed on the record before it to determine whether trial counsel's conduct was effective and, therefore, it vacated the judgment of sentence and remanded the matter to the trial court with instructions to conduct an evidentiary hearing into trial counsel's decision not to interview these witnesses. Commonwealth v. Durst, 370 Pa. Superior Ct. 645, 533 A.2d 1073 (1987).

Dissatisfied with the action of the Superior Court, the Commonwealth petitioned us to grant review arguing that, in reaching its decision, the Superior Court misapplied the case law as established by this court when analyzing ineffective assistance of counsel claims.

We granted the Commonwealth's petition to review this issue and now reverse.

We have taken great pains to set forth the criteria that must be established when one attempts to assert the ineffectiveness of counsel. The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis ...


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