*1 63 in оrder hearing alleged to determine the issue of the ineffectiveness of counsel.
In this case counsel of trial alleges ineffectiveness counsel in that trial counsel failed information investigate on of a material bearing credibility prosecution witness. This issue cannot be decided on the record before us and should be rеmanded for an evidentiary hearing.
Present alleges counsel the existence of an investigative report prosecution concerning witness which trial coun- sel knew about but failed to investigate. At an evidentiary hearing, counsel will tools present available to him to obtain a copy that report have, which he does not now such as the right subpoena documents to the necessary issues in an If evidentiary hearing. investigative report cannot be produced, counsel in an evidentiary hearing may be able to establish the contents that report.
This Court is not a court of original jurisdiction in such matters and should not require prove counsel to this Court the truth of mаtters not contained in the record before this Court.
This matter be should remanded to the trial court for an evidentiary in order hearing to afford an present counsel opportunity establish the claimed ineffectiveness of trial counsel. Pennsylvania
COMMONWEALTHof MARTIN, Appellant. Calvin Supreme Court Pennsylvania.
Submitted Oct. 1977.
Decided June 1978. *3 Mandell, for Philadelphia, apрellant. Lee Goldblatt, H. Atty., Dist. Steven Fitzpatrick, F. Emmett Stiles, Dist. Law, R. Asst. Michael Atty. Dist. for Deputy Div., Philadelphia, Chief, Greenspan, Jane Appeals Atty., appellee. O’BRIEN, ROBERTS, POM- EAGEN, J., and
Before C. LARSEN, JJ. EROY, NIX, MANDERINO and OF THE COURT OPINION EAGEN, Justice. Chief Martin, was convicted Calvin
Appellant, first Post-verdict degree. murder of the Philadelphia *4 arrest of the an seeking trial counsel motions filed and a sentеnce a new trial were denied1 and/or judgment followed. appeal was This imposed. life imprisonment counsel, that new is represented by In this Martin appeal assignment trial counsel. The sole is, counsel other than judgment new filing and/or for a in arrest of 1. Prior to the motions ground trial, on the to set aside the verdict counsel filed a motiоn agreeing jurors her been coerced into with of the had that one fellow-jurors following guilty motion was denied verdict. This on evidentiary hearing. an error is that trial counsel in was ineffective protecting Martin’s appellate rights by to include in the post- verdict motion for a new trial the following alleged six errors:2
(1) witness, allowing Commonwealth оne Anthony Brothers, to as to testify the alleged prior commissionof a Martin, crime by involving decedent, Jonathan Kent, arrest, trial, crime resulted in neither an nor convic- tion;
(2) refusing grant trial counsel’s motion for a mistrial after stricken; Brothers was (3) allowing a non-medical witness to testify concerning nature; facts which were medical in (4) receiving into evidence certain photographs depicting an automobile’s trial, condition at the time of but purport- ing depict condition of the said automobile at the time of the crime, commission of the some seven months prior;
(5) the trial court’s denial of appellant’s “for request binding instruction that where two inferences arising from the evidence were possible; one consistent with guilt and one innocence, with that the must jury draw that of innocence”;
(6) the trial court’s denial of motion appellant’s to set aside the verdict based upon allegations of coercion exerted upon one of the jurors.
In determining effectiveness, counsel’s we must beаr in mind the standard set forth in Commonwealth ex rel. Wash- ington 599, v. Maroney, 235 A.2d 352 (1967):
“[Cjounsel’sassistance is deemed constitutionally effective once we are able to conclude that the particular course chosen counsel had some reasonable basis designed effectuate his client’s interests.” [Emphasis original.] sufficiency Although 2. challenged, of the evidence is not now we sufficiently studied the record and are satisfied the trial record supports the verdict. evidence, finding From the was warranted that Martin cold, shotgun aided slaying and abetted in the calculated of one Jonathan Kent. *5 68 is or the issues counsel initial is whether inquiry
Our were in the motion pursuing post-verdict with not charged argua- the issues were of merit. If we conclude arguable inquire then we to only proceed then and do ble had some course chosen counsel by whether the particular to his client’s interests. basis effectuate designed reasonable Hubbard, 259, 276-78, 472 Pa. Commonwealth (1977). 695-96 counsel In to Martin’s first contention trial regard assign for to as error post-ver- was ineffective wit- allowing dict motion the trial court’s Commonwealth ness, Brothers, to as to acts of Anthony testify one prior Martin, the record shows Brothers testified that Martin into home and three came his took persons $15.00 other his 7:30 pocket p. his consent from at m. on Novem- without thirteen Kent was 29, 1974, days ber which was before at the time of this event was Brothers’ killed. Also present Kent, loading a the murder victim. After mother and had into persons brought which one of the other shotgun Brothers, him house, Martin, to tried to strike according hitting ensued which Kent terminated fight with it and a with a chair. Martin trial counsel testimony, objected
Prior to Brothers’ had hearing evidence. After an offer the аdmission such camera, judge the Commonwealth proof by counsel, how- recounted above. Trial testimony allowed ever, the admission of this as error assign testimony failed to in the motion. rule, evidence that a has general
As a
defendant
wholly
crime
and uncon
independent
committed another
he is
is
which
on trial
irrelevant
nected with
of the
special
under
circumstances. One
except
inadmissible
to the
as an
operates
exception
circumstances
special
tends
is the case where
general
proffered
rule
crimes
motive for the crime or
the defendant’s
establish
v. Ro
the indictment on trial. Commonwealth
charged in
However, to be
mаn,
(1976).
A.2d 214
crime,
of a
exception,
under this
evidence
distinct
admissible
ground
if
motive,
give
even
relevant
“must
sufficient
being
grew
believe that the crime
considered
out
currently
or
of was in
caused
set of facts
prior
way
*6
Schwartz, 445
515,
circumstances.” Commonwealth v.
Pa.
154,
(1971).
case,
In the instant
the Commonwealth maintains
persons
that evidence of Martin and three other
taking
Brothers;
a
money from
of Martin
on and
holding shotgun
it; and,
striking Brothers with
of Kent
the
stopping
ensuing
struggle between
and
by hitting
Martin
Brothers
Martin
intent,
a
motive,
with chair is
to show
admissible
and ill-will
part Martin,
on the
of
who was charged
killing
with
Kent a
mere thirteen
after this incident. Placed in this
days
frame
reference,
we
the
was in
say
cannot
trial court
error when
it concluded the
of these prior
gave
evidence
acts
sufficient
to believe
Kent’s
out
ground
killing
that
of or was in
grew
prior
conclude,
some
caused
way
by the
incident. We
there
fore,
that since this issue was not of arguable
counsel was not ineffective in
to raise it in
failing
post-ver
dict motions.
ex rel.
Washington
See Commonwealth
n.8,
n.8;
Pa.
Maroney, supra, 427
at 605
“this been jury cannot a fair trial because оf feel the defendant receive so it prejudicial of the was testimony nature innocence, under the cir- presumption erodes subsequently testimony given cumstances was credibility attack his upon witness was withdrawn without create such a void of this and will jury leaves in minds can fair trial I think the defendant obtain don’t jury.” with this particular
This was motion denied. case, since Martin of the instant
In
context
admissible,
albeit
damaging,
succeeded in having
it,
we do not
stricken,
disregard
instructed
not
has
which is
prejudiced.
how he
been
Evidence
see
a mistrial.
objectionable
declaring
is
clearly
ground
*7
v.
183, 188-93,
Reading,
Fleischman
388 Pa.
See e.
g.,
429,
432-34
While it is true that
trial counsel
(1957).
Brothers,
cross-examine
an
this
did not have
tо
opportunity
to
was
testimony
was
his motion
strike Brothers’
because
the
immediately
made
the trial court
after
granted
and
direct examination. We
unable
conclusion of Brothers’
are
to
was
motion
strike
to
that
the
of trial counsel’s
say
timing
Furthermore,
trial court after
the
a tactical decision.
strong cautionary
a
instruction
testimony gave
the
striking
the
that
it
In view of
fact
entirely.
to
disregard
the
admissible,
than
such
Martin received more
testimony was
Thus,
he
trial court did not
that
was entitled.
mistrial,
Common
grant
abuse its discretion in
refusing
Hawkins,
v.
wealth
206,
(1972),
448 Pa.
“MR. Objection. RANDOLPH:
“THE COURT: Overruled.
“A. I would on say, yes, happen striking any that could mutilated like very bone in the would become body. They this with that effect.” First, was error. whether or not ruling
We do not agree sound a witness is as an is within the qualified “expert” discretion of the trial court and its will not be ruling overturned unless clear abuse occurs. Commonwealth 373, Bennett, (1977). 370 A.2d firearms here was an and could expert experienced person expected concerning be to have first-hand knowledge to a bullet consequences hitting object, from another wheth- er this object be a bone inside a or some other solid body Thus, object. we see no abuse in such admitting testimony. was, course, Moreover, Its for the since credibility jury. that a bullet passed it was clear from other neck, Kent’s was through spine jaw extracted from his body, the actual cause of the distortion did not make significant questions difference the ultimate resolving this case. this is not of this arguable Sinсe issue of counsel for precludes finding ineffective assistance failing to it pursue post-trial.
Martin’s fourth is that his trial counsel was complaint ineffective in to in failing assign post- as error the written verdict motion the trial court’s “into evidence of reception certain an photographs depicting automobile’s condition at trial, the time of but the purporting depict to condition of the said automobile at the time of the commission of the crime, some seven months prior.” This contention is clearly belied the by Commonwealth witness’s on both testimony direct and just cross-examination that he had taken the on photographs day previous the to his that he testimоny; 72 not was in its long sitting
did know how the automobile location; and, know not that he did not whether or present 12, 1974. it was the same condition as it was on December event, In of independent the an eyewitness provide and the officer sufficient a arresting proper was foundation the admission of the evidence photographic for herе. The in the was similar photographs very automobile O’Bryant, Miss an eyewit- to the car described getaway crime, arresting ness to officer. It also bore arresting the same number as the officer testified license proper was that car. foundation of the Since getaway it was provided, properly of this evidence was admission its to the concerning allowed. questions relationship Any weight crime or to the such evidence goes the defendant Ford, v. 451 Pa. Commonwealth admissibility. but not its v. Commonwealth 81, 84, 856, also (1973). 857 See Yount, 242, 303, 316, Ac- (1974). 314 A.2d 249-50 issue trial cordingly, arguable since this is not counsel it in the not be faulted for raise may post-verdict motion. it
The errors which is trial remaining alleged argued counsel in the motion are pursued should in the brief. argument portion appellant’s discussed consideration, Nonetheless, we after careful conclude complained in the context of case do not of omissions this constitute ineffectiveness. included
The
instruction
in No. 5 of
requested
is an incorrect
statement
of the law.
аlleged trial errors
referring
evidentiary
is
Appellate
apparently
counsel
reasonable
mutual
equally
proposition
two
“[w]hen
inferences can be drawn
from
set of
ly inconsistent
the same
must
circumstances,
permitted
not be
guess
when
the two
adopt,
inference
it will
one of
especially
a defendant
life or his
guеsses
depriving
result
of his
may
New,
Knee
188,
Woong
Commonwealth
Pa.
liberty.”
(1946)
added],
47 A.2d
[emphasis
question
final
error
raises a
which is
alleged
nature,
prima
physical
facie of a most serious
namely,
*9
allegation,
of this
The merit
aof
juror.
and mental coercion
record
the
case
and
however,
in the instant
by
is belied
arguendo,
Assuming,
basis.
lack of an
factual
underlying
Pierce,
Pa.
of Commonwealth
that
hurdles
testify
as to
(juror
competent
not
(1973)
MANDERINO, J., dissenting filed a opinion.
MANDERINO, Justice, dissenting. that trial counsel was
I The concludes majority dissent. motions, in pursue, ineffective a allowing issue the trial court erred of whether three appellant witness to that other prosecution testify his and robbed him of Al- persons entered home $15.00. law general states the as to though majority correctly conduct prior (at pp. of of criminal evidence admissibility to the case law 68), correctly apply it fails to here. 69): The majority says, (at p. case,
“In the instant the Commonwealth maintains that persons taking evidence Martin other money of and three Brothers; holding from of on and strik- shotgun Mаrtin it; Kent and, stopping ensuing Brothers with of ing Brothers struggle by hitting between Martin and Martin motive, intent, with a to show chair is admissible Martin, charged ill-will who was with on the part this days a mere after incident.” killing Kent thirteen this case with the introduction we are Clearly, dealing facts. one of these facts Only of three and distinct separate motive, appellant’s has tо the question relevance decedent, intent, toward the Kent. or ill-will as directed Kent stopped That the witness’ fact is in striking appel- between and Brothers struggle appellant was, course, lant with a chair. That fact admissible. *10 between appellant facts indicating struggle commission of the by Brothers was precipitated apрellant’s motive, crime of were not relevant to robbery armed intent, with or ill-will later have formed appellant may The the commission of this regard to Kent. evidence of however, not have crime was and should highly prejudicial, been admitted. have
Appellant’s prevented prejudice counsel could by caused the witness’ stаtement of these irrelevant facts seeking, prior to the witness’ an offer of testimony, proof, and then the court to instruct requesting prosecuting not to attorney testify the witness was as to irrelevant criminal but was to confine his prior activity, that a struggle remarks to the statement took place was terminated the decedent’s aсt of striking appellant with a would able to chain. thus been prosecution motive, intent, to appellant’s its evidence relative present decedent, and ill-will toward would not have appellant of the irrelevant evi- been introduction prejudiced by prior activity. dence his criminal indicating participation reasons, аrgua- For these I conclude that the issue was of mo- ble and should have been raised tions. Failure to raise it the effective appellant denied counsel, assistance of case should be remanded for the filing proper post-verdict motions this issue. raising
Argued Jan. 1978. Decided June 1978.