COMMONWEALTH оf Pennsylvania, Appellee, v. Frederick BURTON, Appellant.
Supreme Court of Pennsylvania.
July 3, 1980.
417 A.2d 611
Argued April 21, 1980.
Robert B. Lawler, Chief, Appeals Division, Neil Kitrosser, Asst. Dist. Atty., for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION
EAGEN, Chief Justice.
On May 31, 1973, the warden and deputy warden of Holmesburg Prison in Philadelphia were slain within the confines of the prison. Appellant, Frederick Burton, and another inmate, Joseph Bowen, were charged with the murders. On June 8, 1976, a jury found Burton guilty of one count of murder of the second degree. Post-verdict motions were filed and denied after a hearing. Burton was then sentenced to a term of life imprisonment.
In this appeal, Burton complains of several alleged instances of ineffective assistance of trial counsel.1 However, we find each of these claims to be without merit.
Presently, Burton contends his trial counsel was ineffective for failing to object to the Commonwealth‘s impeachment of defense witness Joseрh Bowen by questions concerning prior arrests which had not resulted in convictions and questions concerning prior convictions involving non crimen falsi crimes. At trial, the Commonwealth cross-examined Bowen4 with regard to a prior shooting of an elderly couple for which he had been arrested but not convicted5 and his prior convictions for assault with intent to kill and
In Pennsylvania, a witness may now be impeached by showing a prior conviction only if the crime involved dishonesty or false statement. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978); Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973). Accord Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Assault with intent to kill and murdеr are not such crimes. Furthermore, prior criminal acts not resulting in a conviction are not admissible to impeach a witness’ credibility. Commonwealth v. Katchmer, supra; Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). Thus, Burton‘s claim that the Commonwealth‘s questions were objectionable is of arguable merit.
However, turning to the second part of the test for effectiveness of counsel, we find that а reasonable basis for not objecting to the questions complained of clearly existed and that counsel‘s assistance cannot, thus, be considered ineffective.7
Furthermore, a finding of ineffectiveness can never be made unless it is demonstrated that the alternatives not chosen offered a potential for success substantially greater than the course actually followed. See Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978); Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1976); Commonwealth ex rel. Washington v. Maroney, supra. Although the questions Burton complains of were objectionable, in light of defense counsel‘s having brought out Bowen‘s conviction for the instant murders and his attempt to depict Bowen as a “killer“, about which acts Burton does not complain, we cannot conclude timely objection to those questions offered a substantially greater potential for success thаn the course actually followed.
Commonwealth v. Sherard, supra, 483 Pa. at 190-191, 394 A.2d at 975; Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).
While we certainly cannot condone consumption of alcohol by counsel immediately before or during a trial, there is no indication that Burton‘s counsel‘s drinking rendered his assistance ineffective. The exchange Burton points to occurred at side bar9 after defense counsel insisted that a question, which had been ruled objectionable before it was completed, be fully entered on the record. After the exchange concerning counsel‘s drinking, counsel was ordered to proceed; the question was placed on the record; and, trial resumed. The trial judge‘s remarks do not indicate he believed Burton‘s counsel was inebriated and/or incapable of effectively representing Burton. In fact, his allowing the trial to resume points to an opposite conclusion. Further, no similar incident occurred either prior or subsequent to the exchange, and the record does not show any noticeable difference between counsel‘s conduct at the time of the exchange and his conduct throughout the rest of the trial. Lastly, other than implying that his counsel‘s drinking resulted in counsel‘s failure to object to the questioning of defense witness Bowen about his prior arrests and convictions, an allegation of ineffectiveness we have already disposed of, Burton does nоt assert any instance in which counsel‘s drinking resulted in ineffective assistance.
In his final assignment of error, Burton complains that trial counsel was ineffective for failing to raise allegedly
“And, Ladies and Gentlemen, this case occurred at Holmesburg Prison. It involved an attack [on] and killing of symbols of authority; the warden and deputy warden and the captain. This is a most serious attack on our very system and it is of the utmost importance that each and every one of you reаlize your duty in this case and discharge them very fairly and firmly so that justice may in fact be done.
“Mr. Moore [defense counsel] spoke of bringing Mr. Burton into the light. Bring him into the light. What about [Deputy Warden] Fromhold? What about [Warden] Curran? They will never be able to be brought into the light in this world.10”
Applying the test for ineffectiveness of counsel to each of these remarks, we find that they do not support a claim of ineffective assistance.
Even where the language of the prosecuting attorney is intemperate, uncalled for and improper, a new trial is not required unless “its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward thе defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975) (citing cases). See also Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979), cert. denied, 441 U.S. 964 (1979). Furthermore, the effect of such remarks depends upon the atmosphere of the trial. Commonwealth v. Stoltzfus, supra. See also Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421, 425 (1962). The assistant district attorney‘s first remark pertaining to the murders being “an attack at our very system” was, to some extent, improper as an irrelevant consideration and should have been avoided. However, it was not such as would
Turning to the second remark complained of, the statement that the murder victims “will never be able to be brought into the light in this world” is closer to the borderline of permissible argument. However, while this remark should also have been avoided, it would not require a new trial. The remark did not go beyond pointing out the obvious fact that the viсtims were dead and did not raise facts or considerations outside the evidence developed at trial. Neither did it convey a personal assertion of belief in Burton‘s guilt. See Commonwealth v. Van Cliff, supra. Moreover, it is clear from the context of the remark that the prosecuting attorney was attempting to meet defense counsel‘s impassioned appeal to the jury “to take him [Burton] out of the dark shadows of that suppression and out of pressure, oppression, and cruelty, and mistreatment, and bodily injury, and bodily harm and let him walk into the premium sunlight of freedom.” See Commonwealth v. Van Cliff, supra; Commonwealth v. Stoltzfus, supra; Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973), cert. denied, 412 U.S. 943 (1973). See also, Commonwealth v. Perkins, supra; Commonwealth v. Dickerson, supra; Commonwealth v. Tauza, 300 Pa. 375, 150 A. 649 (1930). Therefore, this statement would not have the “unavoidable effect” of prejudicing the jury, “forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Cf. Commonwealth v. Van Cliff, supra. Compare Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978) (where prosecutor made remarks indirectly conveying his personal belief concerning critical issues and placed unnecessary emphasis on involvement of drugs, the remarks
Since the remarks presently complained of were not such as would require a new trial, Burton‘s trial counsel cannot be considered ineffective fоr failing to raise this claim of error in post-verdict motions. Accord, Commonwealth v. Hubbard, supra.
Judgment of sentence affirmed.
ROBERTS, J., filed a dissenting opinion.
ROBERTS, Justice, dissenting.
Appellant has been convicted of murder of the second degree and stands subject to a judgment of sentence of life imprisonment. Appellant claims, and the record establishes, that appellant‘s counsel at his jury trial noticeably dеmonstrated signs of alcohol consumption. Nevertheless, a majority of this Court now affirms the judgment of sentence of life imprisonment received as a result of this representation. The Court thus, with a single stroke, fails to accord appellant his basic constitutional right to counsel and renigs on its obligation to protеct the dignity and integrity of our courts of criminal justice. I cannot join in this action.
The
In addition, the closing remarks of the district attorney, as set forth in the majority opinion, were clearly improper and prejudicial. The prosecutor‘s description of the present crime as “an attack on our very system,” was plainly designed to lead the jury to ignore the specific question of guilt or innocence in pursuit of some broader social judgment, and the prosecutor‘s lament that the victims of the crime would “never be able to be brought into the light of this world,” is precisely the type of appeal to passion and unreason which this Court has always held impermissible. Cf. Commonwealth v. Black, 480 Pa. 394, 390 A.2d 750 (1978). On this ground as well appellant is entitled to a new trial.
Notes
However, we find the issues presented in original counsel‘s brief waived and, thus, will not consider them. Burton‘s written post-verdict motions, filed after our decision in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), were of the “boiler plate” variety аnd did not include the issues presented in original counsel‘s appellate brief. Commonwealth v. Blair, supra. Although some of these issues were considered by the court presiding over Burton‘s post-verdict motions, there is no assertion or indication of record that these issues were raised in a brief presented to that court. Compare Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977).
The issues raised in present counsel‘s brief all involve allegations of ineffective assistance of original counsel. Since this is new counsel‘s first opportunity to present those issues, they are properly before us. Commonwealth v. Hubbard, 472 Pa. 259, 276-277, n. 6 & 7, 372 A.2d 687, 695, n. 6 & 7 (1977) (citing cases).
“our inquiry ceases and counsel‘s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effeсtuate his client‘s interest. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel‘s decisions had any reasonable basis.” [Emphasis in original.]