DocketNumber： 121, 122, and 127
Judges： Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino
Filed Date： 2/28/1977
Status： Precedential
Modified Date： 10/19/2024
On the evening of June 17, 1966, John Gorey, an officer of Teamsters Union Local 107, and his friend, Rita Janda, were fatally shot at the local union’s Philadelphia office building. In November of that year, on the basis of evidence presented at a Medical Examiner’s inquest, John Sullivan, also an officer of the local, was charged with both murders.
Sullivan’s jury trial began on June 7, 1967. On June 19, 1967, the jury found him guilty of two counts of murder in the first degree. The following day, the jury determined that Sullivan should be sentenced to serve two consecutive terms of life imprisonment.
Sullivan appealed to this Court and, because the Court was equally divided, the judgments of sentence were upheld. Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1970). This Court denied a petition for reargument and later denied a self-styled “Petition for Leave to File a Petition for Re-consideration of the Petition for Reargument.”
In 1974, Sullivan filed a petition for relief pursuant to the Post Conviction Hearing Act
After a hearing, the court concluded that Sullivan had not received effective assistance of counsel on appeal. It therefore issued an order granting Sullivan leave to file a new appeal to this Court. The court denied Sullivan relief on his other claims finding that some were without merit and that others were available to him in his new direct appeal to this Court.
Three appeals resulted from the PCHA court’s order. Appeal number 127 is the Commonwealth’s appeal from the order granting appellant a new appeal; appeal number 121 is Sullivan’s direct appeal; appeal number 122 is Sullivan’s appeal from the PCHA court’s denial of
I.
The Commonwealth argues that the PCHA court erred in granting Sullivan a new appeal because (1) the court was without authority to do so, and (2) the record fails to support the court’s conclusion that Sullivan did not receive effective assistance of appellate counsel.
Initially, the Commonwealth argues that under the PCHA, “a trial-level court” cannot find that a petitioner’s appellate counsel was ineffective and grant him leave to file a new appeal. Although the Commonwealth concedes that a claim of ineffective assistance of appellate counsel is cognizable under the PCHA, it maintains that “a rational system of judicial decision making demand [s] that [the court in which the direct appeal was initially filed] determine the effectiveness of representation by appellate counsel.” Apparently, the Commonwealth would have a PCHA petitioner file his petition directly with the appellate court.
We cannot agree that such a procedure is desirable. Certainly the PCHA and our rules governing post-conviction proceedings, Pa.R.Crim.P. 1501-06, mandate that the hearing court initially decide a petitioner’s claim.
Section 5 of the PCHA grants jurisdiction initially to the court that imposed the judgment of sentence:
“(a) Any person who desires to obtain relief under this act may initiate a post conviction proceeding by filing a petition . . . with the clerk of the court in which he was convicted and sentenced which said court is hereby granted jurisdiction to hear and determine same.”
Post Conviction Hearing Act § 5(a), 19 P.S. § 1180-5 (a) (Supp.1975). See Pa.R.Crim.P. 1502.
The Act thus makes no provision for the hearing of claims for PCHA relief in any court other than the court in which the judgment was originally entered. We decline the Commonwealth’s invitation to ignore the statute and existing practice and adopt a drastically new procedure.
We believe that the statutory allocation of judicial responsibility in the determination of claims raised under the PCHA necessarily reflects the institutional capabilities of trial and appellate courts. When deciding a claim of ineffective appellate counsel, the hearing court must determine if the course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Frazier, 455 Pa. 162, 314 A.2d 16 (1974); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); Cf. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Because this decision requires an examination of counsel’s stewardship of the appeal in light of the available alternatives, it often will be necessary to call counsel whose assistance is challenged as ineffective so he may explain the decisions he made in the course of the appeal. Furthermore, both the petitioner and the Commonwealth may wish to call additional witnesses and present other evidence relevant to the petitioner’s claim. Cf. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1974);
We do not view a PCHA court’s finding of ineffective appellate counsel after an evidentiary hearing as a challenge to the integrity of appellate decisions. Such a determination merely finds that counsel’s ineffective stewardship of the appeal failed to adequately present to the appellate court some claim or claims' upon which petitioner may have been entitled to relief. In determining whether appellate counsel was effective, the PCHA court passes not on our decision, but only on the conduct of the counsel who presented the appeal.
Moreover, the appellate court is not bound by the decision of the PCHA court. If the Commonwealth believes that the evidence is insufficient to support the court’s findings of fact or its legal conclusion that counsel was ineffective, the Commonwealth may appeal to the appropriate appellate court as was done in the present case. Post Conviction Hearing Act, § 11, 19 P.S. § 1180-11 (Supp.1975).
In the instant case, Sullivan bases his claim of ineffective assistance of appellate counsel on two grounds: (1) the failure of counsel to file a brief in this Court and, (2) counsel’s decision not to argue the case orally. The Commonwealth asserts that a brief, in fact, had been filed and that the decision to submit the case on briefs was reasonably made in Sullivan’s best interests.
On the basis of the testimony adduced at the Post Conviction Hearing, the PCHA court reached the following conclusion:
“A careful consideration of all the testimony concerning defendant’s appellate rights clearly indicates that oral argument was not waived by defendant and that there was considerable confusion between counsel concerning the appeal due to Judge DiBona’s appointment to the bench and Mr. Peruto’s heavy trial schedule.9 In a matter involving a conviction for first degree murder, it is our opinion that defendant’s right should have been fully protected and every possible ar*145 gument fully explored. We cannot say that this was done in this case.
“We are mindful of the fact that the Supreme Court divided evenly in its decision in this case. Oral argument might have persuaded a different decision. Furthermore, defendant was entitled to a carefully prepared brief by his counsel so that his argument could be fully presented and it does not appear that was done in this case. To this extent we find as a fact that there was ineffective assistance of counsel and that this requires granting defendant relief.”
The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. See Commonwealth v. Smith, 454 Pa. 256, 312 A.2d 396 (1973); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d 569 (1968). Consequently, this Court will not disturb its findings if they are supported in the PCHA record. See Commonwealth v. Hauser, 450 Pa. 388, 299 A.2d 218 (1973) ; Commonwealth v. Tabb, 433 Pa. 204, 249 A.2d 546 (1968); Commonwealth v. Minnick, supra. This is true even when the record could support a contrary holding. See Commonwealth v. Hauser, supra.
On this appeal, we find there is sufficient evidence in the record to support the factual findings of the PCHA court. Furthermore, counsel’s filing of a highly unorthodox “brief” which failed to comply with our rules and which appears to be only a preliminary draft and his failure to argue the appeal orally support the PCHA court’s legal conclusion that Sullivan was deprived of effective assistance of appellate counsel in his initial appeal.
Although the decision to proceed on appeal without oral argument may be a tactical one that counsel is entitled to make, see Supreme Court Rule 32, like every
This Court has previously held that a decision of a court in a case where appellant was without the effective assistance of counsel is not binding upon appellant. See Commonwealth v. Cheeks, 429 Pa. 89, 96-97, 239 A. 2d 793, 797 (1968). Therefore, where an appellant is denied the effective assistance of counsel on appeal, the proper remedy is to afford appellant a new appeal in which he may reassert the issues adversely affected by his initial counsel’s ineffective stewardship of his appeal.
Having determined that this appeal is properly before us, we now consider the substantive claims presented therein.
II.
Appellant concedes that the Commonwealth has proved all the essential elements of the murders except the identity of the perpetrator. He now contends that this alleged failure of proof is fatal to the conviction in that, as a matter of law, the evidence was insufficient to support the verdict. We disagree that the evidence adduced at trial by the Commonwealth, if believed, would not satisfy all elements of the crimes beyond a reasonable doubt.
The chief prosecution witness, one Francis McGrath was employed as a janitor at the union hall where the bodies were eventually discovered. On June 17, 1966, he arrived at work approximately 6:00 P.M. and parked his automobile in the lot adjacent to the building. At that time, he specifically observed two other vehicles on the premises. One was owned by appellant and the other was being used at the time by one Anthony DiPasquale. After alighting from his car, McGrath noticed appellant looking out onto the parking lot from the window of a second floor office normally used by other union officials. The witness then entered the building and proceeded to the second floor to commence his duties. Appellant was still seated by the window when McGrath entered that office. Sullivan inquired about the janitor’s presence and instructed McGrath to wait until Sunday night to clean, since a union meeting was scheduled for that date and the building would require cleaning after the gathering.
At this time, both Sullivan and McGrath observed John Gorey and Rita Janda arrive at the union hall in Gorey’s car and enter the building. McGrath then began cleaning the conference room, located approximately 75 feet from Gorey’s office. Shortly thereafter, Gorey appeared and had a brief conversation with McGrath. Immediately after Gorey left the conference room, appellant appeared in the doorway, through which Gorey had just passed, and again questioned McGrath about the cleaning and suggested he defer his activities until Sunday afternoon. During this brief conversation, Gregory Carchidi, another janitor, entered the conference room. No conversation ensued between Carchidi and Sullivan but Carchidi repeated appellant’s urgings to leave the work until Sunday. Sullivan then left the room through the same door which Gorey had exited but Carchidi remained and seated himself behind the desk.
Within several minutes, the witness testified he heard sounds like firecrackers going off in rapid succession. McGrath started to question Carchidi about the disturbance but was abruptly instructed to “Get out of the building and don’t say nothing” (sic). McGrath left the union hall and noticed four cars other than his own parked in the lot. These were recognized as belonging to DiPasquale, Gorey, Carchidi and appellant. McGrath drove off but returned to the premises within 15 minutes. Only Gorey’s car remained in the lot. Upon re-entering the building, he found the offices closed, the conference room locked and the lights out.
The victims’ bodies were discovered the following morning. Gorey had been shot four times and Janda six times, the shots being fired from close range. The ballistics studies established two separate guns were em
Additional testimony disclosed that the telephone lines had been arranged so that regular incoming calls would ring in the room in which appellant was seated. A second line with a different call number had been prearranged by Gorey to ring in his office so that he could receive an anticipated call from Joseph Vernick at 7:00 P. M. One Irene Glenn testified for the Commonwealth that she dialed the regular union phone number about 6:15 P.M. that evening and a man answered identifying himself as Gorey. A scrap paper found in the wastebasket alongside the desk where appellant had been seated prior to the victim’s arrival contained Ms. Glenn’s name and telephone number. It was uncontested that the handwriting was that of appellant. Moreover, one Joseph Vernick testified that he called Gorey’s office at a specially arranged time but received no answer despite his repeated attempts between 7:15 and 8:15 P.M. This evidence, coupled with the medical examiner’s testimony, indicated that the time of death could have been approximately 7:15 P.M. At the close of the case-in-chief, no evidence was presented by the defense.
In determining the sufficiency of the evidence the test is whether, accepting as true all of the evidence of the Commonwealth and all reasonable inferences arising therefrom, upon which, if believed, a finder of fact could properly have based its verdict, such evidence was sufficient in law to prove the elements of the crime in question beyond a reasonable doubt. Commonwealth v. Segers, 460 Pa. 149, 157, 331 A.2d 462, 466 (1975); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Williams, 450 Pa. 327, 301 A.2d 867 (1973).
An analysis of the facts supports the jury’s findings. Sullivan had remained at the window looking out onto the parking lot for more than 20 minutes after Mc-Grath’s arrival, indicating that he was awaiting the arrival of a particular individual. Sullivan did not leave that observation point until he had seen the victims arrive, strongly suggesting that it was in fact Gorey and Janda whose arrival he was awaiting. The evidence further justifies an inference that Sullivan attempted to conceal his identity and presence by answering the telephone as “Gorey.” Moreover, he attempted to persuade McGrath to leave the premises by repeatedly suggesting
This conclusion is buttressed by the actions of Carchidi, a co-defendant, who entered the conference room and without engaging in discussion with appellant, also instructed McGrath to defer his duties until Sunday. Almost immediately thereafter, appellant exited the conference room through the same doorway which Gorey had previously departed, and which led towards Gorey’s office, the scene of the murders. Momentarily, the shots were heard and Carchidi told McGrath to “. . . get out of the building and don’t say nothing” (sic). A reasonable inference can be drawn that the repetition and similarity of these statements to McGrath by appellant and Carchidi just prior to the shootings was indicative of their knowledge of the impending incident and further evidenced their attempts to remove any potential witnesses to the crime.
Additional evidence of guilt may also be inferred from appellant’s statements to police. During questioning several days after the murders, Sullivan denied being present at the building during the time of the shootings. This contradicted McGrath’s statement which placed Sullivan in direct proximity to the crime only moments before its occurrence. Moreover, McGrath stated that when he left the building Sullivan’s car was still parked in the lot.
As stated by our Court in Commonwealth v. Sauders, 390 Pa. 379, 388-89, 134 A.2d 890, 895 (1957):
In Commonwealth v. Bolish, 381 Pa. [500] at page 524, 113 A.2d [464] at page 476, supra, the Court said: “. . . false or contradictory statements by the accused are admissible since the jury may infer therefrom that they were made with an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence, and hence are indica*152 tory of guilt: Commonwealth v. Lowry, 374 Pa. 594, 601, 98 A.2d 733 . . .” See to the same effect: Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743, supra; Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161; Commonwealth v. Danarowicz, 294 Pa. 190, 144 A. 127; Commonwealth v. Hadok, 313 Pa. 110, 169 A. 111; Commonwealth v. Karmendi, 328 Pa. 321, 328, 195 A. 62; Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389; Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155; Cathcart v. Commonwealth, 37 Pa. 108, 113; McMeen v. Commonwealth, 114 Pa. 300, 306, 9 A. 878; Commonwealth v. Johnson, 162 Pa. 63, 29 A. 280; Commonwealth v. Jones, 297 Pa. 326, 146 A. 905.
Appellant claims that this evidence fails to preclude the possibility that a third party committed the crime since the building was unlocked and several other individuals were known to be about. The Commonwealth concedes that the evidence does not exclude participation by anyone else. In fact, the testimony showed that two guns were used in the murders. However, appellant was the only known person on the second floor whose whereabouts were unaccounted for during the shootings. Moreover, it is not required that the prosecution exclude all possibility of a third party committing the act.
“If eyewitness testimony of the commission of a murder were necessary, or if the Commonwealth had to exclude the possibility of a third person committing the crime — which would, in reality, require an eyewitness or the capture of defendant “red-handed” — few murderers would ever be convicted, and society could not possibly be adequately protected. Moreover, even if a defendant was caught running away from the murder scene right after the murder, he would have to be acquitted under the “exclusion” theory because he could contend that he was running away in order to avoid suspicion or to escape from the unknown criminal’s at*153 tempt to murder him. In the Sauders case, in the Bolish case, in the Homeyer case, in the Wentzel case, [Com. v. Wentzel, 360 Pa. 137, 61 A.2d 309], in the Danz case, [Com. v. Danz, 211 Pa. 507, 60 A. 1070], in the Boden case, [Com. v. Boden, 399 Pa. 298, 159 A.2d 894], in the Carey case, [Com. v. Carey, 368 Pa. 157, 82 A.2d 240], and in Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362, infra (to mention just a few) there were no eyewitnesses to the murder; the exact time of death was unknown; and any third party or unknown person could have committed the murder. Any refinements or distortion of the law such as defendant urges would not only require us to overrule a myriad decisions of this Court, but would make the protection of society in most cases realistically impossible.” Commonwealth v. Kravitz, 400 Pa. 198, 212-13, 161 A.2d 861, 868 (1960).
In Kravitz, supra, we concluded by determining that it is unnecessary for the Commonwealth to dispel all possibility of doubt provided the evidence, if believed, warrants a finding of guilt beyond a reasonable doubt. Here the Commonwealth concedes that the evidence did not foreclose the possibility of the participation of a third person to the shooting. In fact it was their theory that at least two persons had actually shot the victims. Nevertheless we are satisfied that the testimony offered to show that Sullivan was one of the participants was sufficient to sustain the verdict.
Finally, McGrath testified that he returned to the union hall some 15 minutes later and found only Gorey’s car parked in the lot. Upon reentering the hall he discovered that all the offices which had previously been opened were closed, the door to the conference room locked and all lights put out. These circumstances are consistent with the inference that Sullivan and Carchidi had left shortly after McGrath’s original departure. They obviously attempted to give the impression that the
While it is not contended by the Commonwealth that any of these facts standing alone would support a conviction, taken in concert with all reasonable inferences, they clearly justify the conclusion that appellant was linked to the crime beyond a reasonable doubt. See Commonwealth v. Petrisko, supra; Commonwealth v. Tinsley, supra; and Commonwealth v. McIntyre, supra.
Appellant next argues that he was denied an opportunity to challenge the array of the grand jury because 1) he was without the assistance of counsel at the time the indictments were presented; 2) he did not receive notice that the cause was to be presented to the October grand jury; and 3) he could not challenge the jury already impanelled. Our review of the record • convinces us that these arguments are without merit.
On November 3, 1966, an inquest was held by the Medical Examiner of the City of Philadelphia. At this time appellant was represented by the late John Patrick Walsh, Esquire. However, following this hearing appellant alleges that he no longer retained the services of Mr. Walsh and was without counsel thereafter until late December, 1966. In support of this position appellant has offered an affidavit supplied by Mr. Walsh prior to his death. Our reading of this affidavit indicates that Mr. Walsh continued his representation of appellant until new counsel was appointed or retained. Having determined appellant had representation during this period we now consider whether said counsel had adequate notice of the presentments and an opportunity to challenge the array of the jury.
At the close of the proceedings before the Examiner the following findings were stated:
“In reviewing the records of the Office of the Medical Examiner and the testimony, I find that Rita Janda*155 and John Gorey died as a result of gunshot wounds of the head, and that the manner of death is homicide, at this stage of the Inquest.
“I find at this stage that there is sufficient evidence to hold John J. Sullivan, Gregory Carchidi, and Anthony DiPasquale for action of Court, and I will continue this hearing until further notice, such time as additional evidence comes before me.”
Appellant argues that this language was unclear and hence insufficient to notify him that the case would be presented to the grand jury. We believe that a proper interpretation of this language taken in context indicates that further hearings were for the investigation of the possible complicity of others but that a determination had been made to hold John Sullivan for action of court. Moreover, we note the affidavit of Mr. Walsh which stated that he understood that Sullivan was being held for action by the grand jury.
Appellant next suggests that the defense was denied notice as to which grand jury the cause would be presented thereby violating the rule enunciated by our Court in Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968). In Collemacine, supra, we held that “Failure to notify the accused or his counsel that his case will be presented to a grand jury other than that to which he was handed over violates fundamental notions of Due Process” (emphasis added). The basis of the Collemacine doctrine was to prevent the presentments from being made to a panel at an indefinite time in the future, without knowledge to the accused, thereby precluding the opportunity for the defense to challenge the array of the jury. In the instant matter, the presentments were made to the jury already impanelled and therefore did not offend the principle announced in Collemacine, supra. See also, Commonwealth v. Jones, 456 Pa. 270, 318 A.2d 711 (1974). Moreover, there is no indication that an experienced counsel of the calibre of Mr.
Additionally, we do not believe that the procedure employed denied this appellant an opportunity to challenge the array as provided by Pa.R.Crim.Pro. 203 which stated in pertinent part: I
“Either the attorney for the Commonwealth or Defendant who has been held to answer may challenge the array of the jurors or an individual grand juror. A challenge to the array must be made only on the ground that the grand jury was not selected, drawn or summoned substantially in' accordance with law. An individual grand juror may be challenged on the ground that he is not legally qualified or that a state of mind exists on his part which may prevent him from acting impartially. All challenges must be made before the jurors are sworn, unless opportunity did not exist prior thereto; in any event, a challenge must be made before the bill of indictment is submitted to the grand jury . . . ” Rule 203, Rules of Criminal Procedure, 19 P.S., Appendix. Adopted June 30, 1964 and effective January 1,1965. (Emphasis added).
Since this jury was impanelled prior to the time of the presentment, appellant would not have been precluded from making a challenge prior to the submission of the bills had he attempted to do so. This however was not done. Although a period of 11 days elapsed between the inquest and the presentment, no challenge was made to the array of the jury nor did the defense attempt to delay the indictment for the purpose of interposing an objection. Rather, no action was taken until two months after the indictments were returned when appellant’s new counsel moved to quash the indictments that had been returned. In Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966), we held that Rule 203 required that an accused must be given sufficient opportunity to challenge the array before the presentments are handed
Appellant next alleges error by the trial court for admitting into evidence color slides depicting the bodies of the victims. We disagree. Our law is well settled that the admission of this type of evidence is within the discretion of the trial court and absent an abuse of that discretion, there is no reversible error. Commonwealth v. Woods, 454 Pa. 250, 252, 311 A.2d 582, 583 (1973); Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962). Moreover, the proper test to be applied by a trial court in determining the admissibility of photographs in homicide cases is whether or not the photographs are of such evidentiary value that their need clearly outweighs their likelihood of inflaming the minds and passions of the jurors. Commonwealth v. Powell, 428 Pa. 275, 278-79, 241 A.2d 119, 121 (1968). However, such photographs will not be excluded merely because they are unpleasant or gruesome. Commonwealth v. Scaramuzzino, 455 Pa. 378, 381, 317 A.2d 225, 226 (1974); Commonwealth v. Snyder, 408 Pa. 253, 257, 182 A.2d 495, 496 (1962).
In the instant case, the Commonwealth’s theory, substantiated by ballistic evidence was that the victims were killed by shots from two different weapons and that each person was hit by shots from both guns. Reconstructing the shooting through these slides the prosecution sought to prove that neither victim could have shot the other, that Gorey was the principal target and
“ Cn the trial of criminal cases photographs of the victim and of the scenes of the crime are admissible to aid the jury in their understanding of the alleged crime, the kind of crime it was, exactly what caused the victim’s death and what, if any connection defendant had with it . . . ’ ” Commonwealth v. Petrakovich, 459 Pa. 511 at 522, 329 A.2d 844 at 849.
See also, Commonwealth v. Robinson, 433 Pa. 88, 249 A.2d 536 (1969); Commonwealth v. Boden, 399 Pa. 298, 307-308, 159 A.2d 894, 899 (1960). Given the nature of the crimes, we believe the photographs helped to supplement the pathologist’s complex and intricate testimony and had essential evidentiary value.
Appellant further'contends that the slides were unnecessary because the defense was willing to stipulate to the evidence concerning the cause of death. This however is not a basis for excluding the evidence.
Finally, we hold that a defendant may not render evidence which is necessarily a part of the Commonwealth’s case irrelevant and inadmissible merely by offering to stipulate. Specifically, photographs which would otherwise be of essential evidentiary value cannot be rendered inadmissible because of a stipulation (by one who does not admit to the crime) that the murderers had specific intent and premeditation. The Commonwealth, with its burden of establishing guilt beyond a reasonable doubt, may not be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.*159 Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968); see also, State v. Jensen, 209 Or. 239, 296 P.2d 618 (1956), appeal dis-
missed 352 U.S. 948, 77 S.Ct. 329, 1 L.Ed.2d 241. Commonwealth v. Sullivan, 446 Pa. 419, 437-38, 286 A.2d 898, 905 (1971).
Having reviewed the slides and considered the trial court’s cautionary instructions to the jury, we conclude there was no abuse of discretion in the admission of these photographs.
It is next argued that the trial court improperly admitted hearsay statements into evidence. Specifically, appellant alleges that McGrath should not have been permitted to testify that immediately after the shootings Carchidi stated, “Get out of here and don’t say nothing,” (sic). This statement was offered by the Commonwealth to establish that the declarant was a co-conspirator and aware that the sounds were actually gunfire caused by the shooting of the victims. After lengthy discussion as to the admissibility of the statement, the witness was permitted to testify concerning Carchidi’s remark. The lower court permitted the evidence on several bases: 1) that it was admissible under the co-conspirator’s declaration exception to the hearsay rule, 2) that it was admissible under the res gestae exception to the hearsay rule, and 3) that even if the statement was improperly admitted, it was not prejudicial to appellant.
In our view, the statement was properly admitted under the co-conspirator’s declaration exception to the hearsay rule. Under this doctrine, if a conspiracy has been established, each conspirator represents the other with respect to the act to be accomplished and everything said or done by any of them in pursuance of the common purpose is admissible against all. 1 Henry, Pennsylvania Evidence § 442, p. 436 (1953). The least
In view of our agreement with the trial court that the statement was properly admitted on the ground of a declaration by a co-conspirator we need not consider the other bases offered by the trial judge to justify its introduction into evidence.
Appellant next presents numerous claims that he was denied his right to effective assistance of trial counsel. Initially we recognize that a presumption exists that counsel is competent, Commonwealth v. Murray, supra, 452 Pa. at 286, 305 A.2d at 36; Commonwealth ex rel. Washington v. Maroney, supra; and a claim of ineffectiveness will not be successful unless it is sustained by the record or other credible evidence. In
Appellant first claims that he was denied effective assistance of trial counsel because his attorneys also represented two co-defendants who were tried separately for the crime. To prove ineffectiveness on this ground, it is necessary to establish that 1) there was dual representation and 2) as a result, a conflict of interest developed. Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974). Dual representation alone does not amount to a conflict of interest. Commonwealth v. Breaker, supra; Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968); Commonwealth ex rel. Corbin v. Myers, 423 Pa. 243, 223 A.2d 738 (1966), cert. denied, 386 U.S. 1013, 87 S.Ct. 1361, 18 L.Ed.2d 445 (1967).
Upon review of the record from the PCHA proceedings, we find appellant has failed to prove the requisite elements of his claim. First, the testimony establishes that there was no dual representation in the true sense of the term, i. e., the same counsel actively represented co-defendants. Mr. Peruto testified that it was Mr. (now Judge) DiBona who served as chief counsel for appellant during trial and made all decisions relevant to Sullivan’s defense while he, Peruto, was merely assisting. These functions were reversed at the trial of the co-de
Appellant next asserts the decision by defense counsel not to present any evidence or permit appellant to testify on his own behalf constituted ineffectiveness. The decision not to present a defense is a tactical one and will not be deemed ineffective stewardship if there is a reasonable basis for that position.
In the instant case, Judge DiBona believed that there was insufficient evidence upon which to convict Sullivan. He therefore refrained from calling any defense witness to avoid the possibility of exposing them to cross-examination through which the prosecution might have extracted those elements necessary to complete their proof. See Commonwealth v. Dancer, supra. In view of the close question of the sufficiency of the evidence on this record, we find that the course chosen by Judge DiBona could not be termed unreasonable.
Additionally, it is contended that at the commencement of trial and out of the presence of the jury, the prosecution delivered a memorandum to the trial court, the contents of which were not made known to the defense. Counsel argued that he was entitled to be apprised of the contents of the memo but that the court denied the request. The failure to press this objection at post trial motions is now assigned as a basis for this ineffective assistance claim. In reviewing this claim of ineffectiveness we must consider whether there was some
At trial, the ballistics expert testified that he had test fired certain guns during his investigation and found that these weapons were not used to commit the crimes herein involved. Thus, not only was the objection not addressed to the propriety of the trial court’s ruling permitting the witness to examine the weapons, the actual results were not harmful to the defense.
The thrust of the objection was directed to a private communication between court and prosecution from which the defense was excluded. While we do not condone such a practice we do not find that any prejudice to appellant resulted in this case. For this reason it is clear that if counsel had pressed this objection on appeal it would not have justified the award of a new trial. Thus counsel cannot be found to be ineffective for failing to preserve an objection which had no probability of success. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974).
Moreover, we cannot accept the contention that the failure of the Commonwealth to make available to the defense these reports in any way violated appellant’s due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady, supra requires the prosecution to furnish the defense evidence on
It is also claimed that trial counsel’s failure to preserve an objection to the trial court’s denial of a request for additional alleged Brady material constituted ineffective assistance of counsel. Specifically Sullivan contends that the prosecution’s chief witness, one Francis McGrath had made various contradictory statements to one Detective McGill during the course of an interview at police headquarters. It is appellant’s position that he was prevented from learning of this information until after the close of the trial and therefore precluded from subpoenaing the detective as a defense witness. There is however, absolutely no factual basis for this assertion. On the contrary, the record establishes that defense counsel learned of the interview with McGill during his cross-examination of McGrath.
Q You went there on Sunday, rather, June 19th, is that right?
A That is right.
Q And that is the time you talked to Detective Duffy, is that right?
A 4 Duffy.
Q Then you went back on June 21st, the Monday is that right, sir . . . I am sorry, the 20th ?
A The 20th, that is right.
Q Who did you talk to then, by the way?
A I talked to Detective McGill, Detective Brooks. I talked to McGowen. I talked to Lt. Matthis. That is about all I can remember, who I talked to.
Despite the information elicited from this witness, defense counsel never attempted to subpoena McGill as a
Nor do we believe that the failure to introduce these alleged inconsistent statements from the interview constituted ineffective stewardship. As stated in appellant’s brief, the statements related only to the question of Carchidi’s guilt or innocence. There is however, no assertion that these statements had any direct bearing upon the innocence of this appellant. Thus, the only purpose to be served by the introduction of the remarks would have been to impeach McGrath’s credibility as a witness in the eyes of the jury. The extent to which defense counsel chooses to pursue a collateral issue is clearly a matter of judgment. Upon review of the record we are satisfied that the defense explored the issue as well as he deemed profitable. During the course of the trial, McGrath was skillfully cross-examined by experienced counsel concerning various inconsistent remarks made to the police, at the Medical Examiner’s inquest and to other individuals. These variations were strenuously argued to the jury as an attack upon the witness’ credibility. Having attempted to impeach the credibility of the witness, we are convinced that counsel’s stewardship was not ineffective merely because he did not expose every arguable inconsistency in McGrath’s testimony.
Appellant next presents several arguments pertaining to trial counsel’s alleged ineffectiveness for failing to raise timely objections to the court’s charge to the jury. Initially, Sullivan contends it was error for the court to express his opinion as to the degree of guilt involved in the crime. We disagree. As previously noted,
“. . . it is always the privilege and sometimes the duty of a trial judge to express his own opinion, including his opinion of the weight and effect of the evidence or its points of strength and weakness or even the guilt or innocence of the defendant and the verdict which, in his judgment, the jury should render.” Commonwealth v. Ott, 417 Pa. 269, 272-73, 207 A.2d 874, 876 (1965) quoting Commonwealth v. Chambers, 367 Pa. 159, 164, 79 A.2d 201, 204 (1951).
See also Commonwealth v. Wilmer, 434 Pa. 397, 254 A.2d 24 (1969).
Moreover, this opinion or comment was required to be fairly or temperately stated, clearly leaving the jury free to reach its independent conclusion. Commonwealth v. Raymond, 412 Pa. 194, 208, 194 A.2d 150, 157 (1963);
We believe this test was satisfied. After his comments, the court repeatedly reminded the jurors that he was merely stating his opinion, the remarks were not binding upon them and that the ultimate determination of the facts and the verdict was solely that of the panel.
Additionally, appellant suggests the court’s instructions improperly emphasized certain evidence and did not fairly state all the possible verdicts in the case thereby usurping the jury’s fact-finding function and directing them toward a first degree murder conviction. These objections however fail to assess the court’s remarks in their proper context. Having reviewed the charge in its entirety as we must, Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973), we find that the charge presented a fair discussion of the evidence. Moreover, the jury was properly instructed on all possible verdicts and received adequate instructions on the applicable law. For these reasons we find that the charge was proper and therefore there was no necessity for counsel to object.
Appellant’s final contention is that trial counsel was ineffective for failing to object to the introduction of evidence that Sullivan had exercised his right to remain silent until he had obtained counsel. However, we need not reach the merits of this claim. Although this ground for relief was alleged in the amended PCHA petition, it was not pursued at the time of the hearing nor was it discussed in the brief to the hearing court. Accordingly we will not consider the question on appeal. Commonwealth v. Bowen, 455 Pa. 152, 314 A.2d 24 (1974).
In appeals at Nos. 121 and 122, Judgments of sentence affirmed.
. Two others, Gregory Carchidi and Anthony DiPasquale, were also charged with the murders.
. The Act of June 24, 1939, P.L. 872, § 701, as amended, repealed by the Act of December 6, 1972, P.L. 1482, No. 334, § 5, provided that after a jury found a defendant guilty of murder in the first degree, it must determine whether life imprisonment or the death penalty should be imposed.
. The motions for a new trial and in arrest of judgment were heard by a three judge court en banc. One of the judges dissented from the order denying the motions.
. Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. §§ 1180-1 et seq. (Supp.1975).
. We have since stated that the preferred practice is for a Post Conviction Hearing Court, having determined that petitioner is entitled to a direct appeal, to refrain from rulings upon the merits of the remaining claims for relief because they will be reviewable on the direct appeal process. Commonwealth v. Webster, 466 Pa. 314, 318-319, 353 A.2d 372, 374 (1975) (and cases cited therein). The only justification for a deviation from this practice is where the trial record is inadequate to provide a basis for a review of the claim or where the claim was not ruled upon by the trial court.
If the record is inadequate then it is the responsibility of the Post Conviction Hearing Court to permit the introduction of testimony and make the necessary findings that will allow for appellate review. Where the trial record contains sufficient basis for a determination but the trial court has failed to rule, then the Post Conviction Hearing Court must either make a determination whether the issue has been waived, or if not, reach the merits of the question presented. In that event, the determination of waiver or the decision on the merits would be subject to review on the direct appeal.
. In Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1974), the appellant alleged on direct appeal that trial counsel was ineffective because he failed to secure the attendance of a witness
. The Commonwealth argues that this limitation on the appellate court’s judicial capabilities does not foreclose the procedure it proposes. It suggests that the appellate court can submit the case to a trial court for a factfinding hearing. We fail to see how this procedure will differ from that required by the statute. Its only effect would be to require an additional hearing before this Court before the evidentiary hearing necessary to resolve appellant’s claim is held. This would cause unnecessary delays and create additional burden on the judicial process without any benefits to the administration of criminal justice.
. The Commonwealth suggests that by allowing trial courts to grant new appeals upon finding ineffective assistance of appellate counsel, “every criminal defendant . . can directly appeal his judgment of sentence . . . have the appellate courts resolve the issues on their merits, and yet
. Judge DiBona, prior to his elevation to the bench, and Mr. Peru-to, served as counsel for appellant.
. This conclusion is further compelled by the quality of the “briefs” filed in support of appellant’s claims for relief. During the evidentiary hearing before the Post Conviction Hearing Court, Judge DiBona, chief trial counsel for Sullivan, testified that he did not file a brief with this Court. He stated that although a rough draft of a brief had been prepared he had no knowledge of its ever being filed. Mr. Peruto, who served as co-counsel during trial and sole counsel before this Court, also had no recollection of a brief being filed. Thus, although this rough draft was eventually presented to this Court as well as a brief prepared by the appellant propria persona, it is obvious that these documents did not represent the studied exposition of the difficult and complex issues raised in this trial which is required by our standards, particularly where the charges were as serious as those involved in this lawsuit.
Additionally, it must be concluded from the testimony presented during the Post Conviction Hearing that counsel made the decision to waive oral argument at a time that he was not aware that a brief had been filed on his client’s behalf. Under such circumstances there is no conceivable basis for concluding the decision was made to effectuate the interests of the client.
. On May 12, 1967, the Rule was amended wherein it specifically provided for a period of at least 10 days between the time an accused is held for court and the presentment to the grand jury. See Pa.R.Crim.P. 203(c).
. In support of his position, appellant relies upon our decisions in Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972) and Commonwealth v. Goins, 457 Pa. 594, 321 A.2d 913 (1974), both of which were decided several years after Sullivan’s trial. However, even assuming arguendo these decisions apply retroactively and that counsel should have possessed the foresight to anticipate them, we believe this reliance is misplaced. In Archambault, supra, we announced a new rule that the trial judge could no longer express an opinion as to the guilt or innocence of an accused. There is no evidence that the trial judge expressed such an opinion with respect to Sullivan and thus that case is inapplicable. In Goins, supra, the accused had admitted committing the homicide but asserted the defenses of intoxication and insanity in an effort to lessen the degree of guilt. Four members of this Court expressed the view that it was inappropriate for the court to comment upon the degree of guilt where that was the only issue for the jury to decide. See Commonwealth v. McNeill, 462 Pa. 438, 341 A.2d 463, 465 (1975). Sullivan however conceded at trial that the crime amounted to first degree murder but based his defense upon the theory that the evidence was insufficient to establish his guilt. Thus the principle announced in Goins, supra is likewise inapplicable here.