*1 ap- Court that Commonwealth appellant asserts Finally, With factor of .87432. apportionment the incorrect plied follow- parties The agree. stipulated we argument this used: should have been ing figures 9,694,692 average tangible property in Pa. $ value of .876183 $11,064,684 tangible average property value of all 2,762,065 etc., assignable wages, salaries, to Pa. = .891035 3,099,840 salaries, wages, etc. total 12,099,725 assignable Pennsylvania _ sales ~ ' 22,956,485 everywhere total sales when .764763, which is factor apportionment The proper gives stock appellant’s of value $10,000,000 applied from interest annual six percent $76,476.30 plus due tax due date. original modi- is affirmed of Commonwealth order The fied.
Supreme Court 24, 1980. Submitted Jan. April
Decided *4 Todd, appellant. for Philadelphia, Joel W. Wasser, Division, Lawler, Chief, Nancy Appeals
Robert B. Dist. Atty., appellee. Asst. for ROBERTS, NIX, O’BRIEN, EAGEN, J., and Before C. FLAHERTY, JJ. and LARSEN
OPINION EAGEN, Justice. Chief Evans, of murder by jury was convicted Harry
Appellant, conspiracy. and criminal robbery, degree, of the second denied, was sen- and Evans then were Post-verdict motions and to on murder conviction the imprisonment tenced to life A direct other convictions. terms on the concurrent prison the sentence on the of judgment to this from Court appeal to the appeal A simultaneous conviction followed. murder on non- of sentence the from judgments Superior We this Court. consolidat- was certified to charges homicide appeals. ed the assignments four of error.
Evans asserts in First, his conviction was obtained he maintains (hereinafter: Pa.R.Crim.P. rights of his under violation trial 1100) brought a be to which defendant requires Rule The complaint. criminal filing within 180 days 9, 1976, and September was filed on in this case complaint 8, 1977. would ended on March the Rule 1100 have period collo However, 21, 1977, an on-the-record after January on a of his to right which Evans was advised during fully quy waiving an agreement within 180 he days, signed trial waiver 1977. This April commencement of trial until not available for Evans’ counsel was was executed because health problem.1 1977 due trial until after March waiver, March Evans the written on Notwithstanding 1100. for of Rule filed a se motion to dismiss violation pro 11; same began was on selection April jury This denied and, on April commenced taking testimony day; on Rule 1100 waiver he executed Evans contends the he 21,1977 intelligent was not because January knowing and the effect right speedy did not to a trial understand He se motion of the further claims his pro waiver. 22, 1977, replaced original after Evans’ counsel 1. On March through- suffering represented Second Evans a heart attack. represents proceedings in the tried Third counsel out court. appeal. Evans this *5 90 his written a revocation of of March 17 constituted
dismiss
with both contentions.
disagree
waiver. We
the on-the-record col
Evans’
and
signed agreement
facie,
establish, prima
his signing,
which
loquy,
preceded
and voluntary.
waiver was informed
that his Rule 1100
155,
v. Myrick,
(1976).
468 Pa.
Next, unfairly prejudiced he was urges Evans a “mur referred to him as witness prosecution purportedly cross-examination, defense coun response in to derer.” On warrant?”, Barlow have a Detective “Did you sel’s question: murderer, We didn’t for a sir. looking “We were stated: this was a direct reference Evans claims need a warrant.”3 as to was so inflammatory him and to murderer trial Although of a mistrial. warrant the granting mistrial, or raise the issue move for a object, counsel did not counsel, was motions, Evans now claims trial in post-verdict doing ineffective for not so.4 pretrial ineffective assistance of he received 2. Evans also claims January proceeding apparently for counsel’s at rights fully alleged him of his Rule 1100 failure to advise filing to for not a motion trial counsel was ineffective contends However, already as we have for of Rule 1100. dismiss violation stated, fully explained to Evans at Rule 1100 was the record shows proceeding. Secondly, cannot be deemed ineffective trial counsel claim, 6, infra, and, see Rule 1100 note to raise a meritless for event, petition so he suffered any to dismiss Evans filed his own in prejudice. no Philadelphia testifying efforts been 3. Detective Barlow had prior to his arrest. Police to locate Evans raise this issue of the case with leave to 4. Evans seeks a remand pro pursuant post-verdict nunc tunc Commonwealth motions (1977). Hubbard, A.2d 687 claim of ineffectiveness *6 with a When confronted We must two-step analysis. a counsel, this utilizes charge of issue the underlying whether the first determine If underlying merit.5 the is of arguable ineffectiveness to a merit, shifts our arguable inquiry to be of issue is found had chosen by the course of whether determination his client’s designed to effectuate reasonable basis some Sherard, v. Common supra; interests.6 Commonwealth Hubbard, supra. wealth v. test, we conclude Evans’ of this part the first
Applying in is question the remark prejudice of unfair claim without merit. in some may, a as a “murderer”
Reference to defendant curative in cases, prejudice necessitating in unfair result Here, a the nature of the of mistrial. granting structions or it com in which was made context the statement us resulted. Cf. Common prejudice no such convince pletely 459 Riley, v. Pa. Hubbard, supra; v. Commonwealth wealth as The was not made (1974). 400 remark 326 A.2d but guilt, as an on his opinion of Evans or condemnation legally a warrant was not why an part explanation Furthermore, appar his arrest. it was necessary already for statements, dire, and the the voir the opening ent from sought been that Evans had produced evidence previously Commonwealth v. for and with a murder. Cf. charged (1973). In this we Pierce, light, 309 A.2d say question prejudiced the remark in reasonably could not for Thus, failing was not ineffective to trial counsel Evans. note to of the trial court. See bring that issue the attention 6, supra. in is trial court erred third complaint
Evans’ alleged of an concerning the statements admitting testimony solely purpose underlying is of resolv issue considered for 5. The representation. ing question See v. of ineffective Commonwealth Sherard, (1978); Commonwealth Hub A.2d bard, supra. for to assert a meritless found ineffective 6. Counsel cannot be Hubbard, supra. claim. Commonwealth co-conspirator implicated which him in charged. the crimes He argues this testimony and did not hearsay qualify under the statements of a co-conspirator exception to the rule since the hearsay statements were made after . had conspiracy terminated.
The statements were question made aby co-conspirator, McBee, Darrow Adams Christopher about one week after the murder and before any time, arrests ensued. At that McBee Adams the murder gave for weapon keep him.
As we have often stated:
“The or acts of declarations one made to conspirator third in the absence of parties are co-conspirator both *7 admissible in evidence against provided that such declarations or acts were made the during conspiracy in furtherance of the design.” common Porter, Commonwealth v. 153, 161, 311, 295 A.2d 314 Ellsworth, Commonwealth v. (1972); 505, 409 509, Pa. 187 640, A.2d 642 (1963). Pass,
In Commonwealth v.
36,
“The duration of a conspiracy depends the facts of upon the particular case, is, that it the of depends upon scope the agreement entered into by its members. Generally, the ends when its conspiracy principal objective is accom plished because no agreement retain after the secrecy achievement of the unlawful end can be shown or implied mere ‘acts of Grunewald v. Thus in covering up.’ States, United 402, supra, 353 at 77 at U.S. S.Ct. the stated, Supreme Court ‘Acts of covering up, even though done in the context of a understood mutually need for
93 conceal constitute that proof themselves cannot secrecy, the was part after its commission ment of the crime fact But the conspirators.’ among initial agreement been has conspiracy of the objective’ the 'central the continuance does not preclude attained nominally conspir that the Where is evidence there conspiracy. steps after the to take certain agreed ators originally reached, or evi was objective conspiracy of the principal reasonably be agreement may an dence from which such Atkins found to continue. be inferred, conspiracy may cf., (9th 1962); 940 Cir. States, v. F.2d United 307 (7th F.2d 256 Cir. Allegretti, United States 1531, 14 denied, 911, 85 L.Ed.2d S.Ct. 1964), cert. U.S. necessity factor is the . . The crucial (1965). . activities were of the part that the later showing for some original plan.”7 45-46, Pass, A.2d at 468 Pa. at supra,
Commonwealth case, we present to the facts of the this test Applying of the murder passing McBee’s persuaded co-conspirator are Adams, witness, scope not within the to the was weapon indi record which There is conspiracy. nothing Thus, original plan. of the part this activity cates prop time were not declarations to Adams at that McBee’s Evans. erly against admissible *8 of
Nonetheless,
not find the erroneous admission
we do
a
Evans’
of new trial.
testimony
grant
necessitates
in
was
established
conspiracy
fully
by
participation
This
co-conspirator.
another
Byrd,
of
testimony
Anthony
prevent
great
promulgated in order to
a
7.
was
The Federal standard
widening
scope
prosecutions
conspiracy
due to the indefi
conspiracies.
life of
See Commonwealth
v.
nite extension of the
Grunewald,
allowing
conspiracy
supra.
It
conceal
was felt that
effectively
would
to be inferred from mere overt acts of concealment
cases,
conspiracy
as well
“wipe
out the Statute of Limitations
hearsay
indefinitely
will
which
declarations
extend
the time within
Grunewald, supra,
co-conspirators.”
353 U.S.
bind
United States
402,
Although
77
a constitutional
standard
at
this is not
S.Ct. at
210,
states,
Evans,
binding
Dutton v.
U.S.
S.Ct.
(1970),
to follow it for the reasons
L.Ed. 213
we will continue
expressed.
evidence was both similar and more detailed than the im-
properly admitted
testimony
Adams and renders that
error harmless beyond a reasonable doubt.8 Commonwealth
Story,
(1978).
Finally, Evans challenges the of the admissibility statement signed introduced at trial as a statement made by him to investigating police detectives. Evans he contends did not make this statement but was coerced into it signing force, the use of by namely physical blows and a wound inflicted on his arm. He further contends that pretrial counsel was ineffective for failing to introduce this evidence at his suppression and that hearing9 his trial counsel was ineffective for failing raise the issue of pre-trial counsel’s ineffectiveness in post-verdict motions.
Earlier in this we opinion delineated the to be analysis used when a claim of considering ineffective assistance of counsel. When confronted with a claim that trial counsel is ineffective for to raise the ineffectiveness of pre-trial motions, counsel in post-verdict the threshold is question whether the claim of ineffectiveness of pre-trial counsel has arguable merit. To answer that we must question, consider the merit of the issue abandoned by pre-trial counsel and whether he had a reasonable basis for doing so. See Com Hubbard, monwealth v. supra. trial,
At
Evans testified he had not given the statement
which was
him
against
admitted
but
it after he
signed
beaten and stabbed in the arm the
by
detectives.
In support
of his
Evans
testimony,
produced
evidence that
documentary
sutures were present in his arm when he was admitted to
incriminating
8. Evidence of
oral and written statements
Evans
However,
was also admitted at trial.
we will not consider this
analyzing
wrongfully
testimony
evidence in
the effect of the
admitted
challenged
testifying
since Evans
these statements at trial
that he did
them,
say
jury
not make
accepted
and we cannot
whether the
or
disregarded
returning
the statements in
the verdicts. See Common
Taylor,
(1977).
wealth v.
Our the suppression hearing of this evidence at for omission ineffective alleged trial counsel’s our review of complicates However, the decision this guided by we are ness. where, similar Hubbard, v. under supra, in Commonwealth was circumstances, it stated: coun- this of trial investigated aspect
“If counsel post-trial concluded reasonably ineffectiveness and alleged sel’s then interest of appellant, acted in the best trial counsel to have been ineffec- not be said counsel could post-trial for raise the issue.” tive Hubbard, 285-286, 372 472 Pa. at supra v. Commonwealth manner, In if trial counsel here made like A.2d at 699-700. counsel pre-trial concluded reasonably an and investigation omission, he not be for his could had a reasonable basis Hubbard, supra, In we Commonwealth found ineffective. record, we do so from the nor can not issue could resolve Hubbard, we Thus, supra, in Commonwealth here. hearing question for an on evidentiary now remand coun- raising pre-trial for not counsel’s ineffectiveness trial Also, as in post-verdict sel’s motions. ineffectiveness ineffective, Hubbard, if counsel is to have been trial found should be vacated and Evans should of sentence judgment wound in the Police Adminis- 10. Evans that the was sutured testified immediately interrogation Building before he after his tration photographed. might Conceivably, pre-trial not been informed of have hearing may alleged prior suppression or have to the coercion allegation known was fabricated. *10 be allowed to file post-verdict motions nunc pro tunc to raise the issue of counsel’s pre-trial ineffectiveness.12
Case remanded for proceedings consistent with this opin- ion.
ROBERTS, J., filed dissenting opinion.
ROBERTS, Justice, dissenting.
Unlike the
I see no
majority,
reason for this Court now to
remand for an evidentiary hearing to determine some “con-
ceivable”
trial
reason
have
might
had for
the issue of
preserve
pre-trial counsel’s
In
ineffectiveness.
view, the record is clear
my
the issue should have been
Hubbard,
See Commonwealth v.
preserved.
259,
286,
687,
700 (1977) (Hubbard I) (Roberts, J., joined
372 A.2d
Manderino,
J.,
“No
dissenting).
‘reasonable basis de-
to effectuate’
signed
interests”
appellant’s
exists which
would
counsel’s failure to
justify
preserve
Id.,
the issue.
288,
Pa. at
COMMONWEALTH of BISHOP, Appellant. Robert Supreme Pennsylvania. Court of Jan.
Submitted 1980. April Decided ineffective, 12. If trial counsel is not found to have been Evans is appeal again entitled to limited to the effectiveness issue.