Commonwealth v. O'Searo
396 A.2d 1173
Pa.
1978
Check Treatment

*1 Pennsylvania COMMONWEALTH of O’SEARO, Roy Appellant. J.

Supreme Pennsylvania. Court of

Argued Sept. 1978. Decided Nov. 1978. Reargument Denied Dec. *3 Rothman,

H. David for Pittsburgh, appellant. Douds, David B. Asst. Mercer, Dist. Atty., for appellee. EAGEN, J., Before C. O’BRIEN, ROBERTS, POM- EROY, NIX, LARSEN, MANDERINO and JJ.

OPINION OF THE COURT NIX, Justice. O’Searo, J.

Roy appellant, was tried and convicted aby murder of the degree first for the shooting Francis 29,1973. Gadola on December On this appeal, Court affirmed the judgment of sentence. Commonwealth O’Searo, 224, 466 Pa. 352 (1976). A.2d 30 subsequently sought relief under the Post Conviction Hear- Act, ing 25, (1965) 1580, Jan. P.L. seq., 1 et 19 P.S. § 1180-1 et seq. (Supp.1978-79) (PCHA), § which was denied by the hearing court. We are now called to review the upon of that propriety order relief. denying

289 In of the for support request post relief, conviction appellant alleges numerous instances of ineffectiveness of his a part trial counsel. After careful review of all of allegations,1 we are satisfied that trial counsel was not hearing ineffective and that court denied the properly request post for conviction relief.

Appellant contends that trial counsel was ineffective for to failing change request making venue. In this argument, appellant expressly county concedes that which the trial heard (Mercer) was not saturated by coverage media of the case. concession, Given this which is record, supported by the is precluded from relying upon pre-trial cases wherein has publicity been so perva sive and inflammatory existence of prejudice actual See, e. g., Commonwealth v. may properly be presumed. Brado, Pa. 470 368 Commonwealth v. (1977); Pierce, 190, 195, denied, cert. 303 A.2d U.S. S.Ct. 38 L.Ed.2d 124 See generally Ranney, Remedies for Prejudicial Publicity, Vill L.Rev. 1. In complaints we will discuss those which war- rant elaboration. We have also reviewed the contentions and find them to also be without merit: that trial failing counsel impeach was ineffective using for certain witnesses prior statements; post inconsistent that the conviction court by failing appearance witnesses; erred to order the of two that trial failing adequately counsel was ineffective for cer- cross-examine witnesses; tain object that trial counsel was ineffective for to the charges; consolidation of firearms and homicide that trial ineffectively appellant’s counsel ineffectively evaluated case and appellant concerning case; communicated with that trial coun- prospective jurors ineffective; sel’s voir dire of that trial counsel *4 failing jury sequestered; was ineffective for to have the that trial witnesses; failing counsel was ineffective for to call certain that trial failing counsel adequately investigate was ineffective for and prepare case; the that trial counsel was ineffective for object to certain inaccuracies in re-enactment of the incident at scene; alleged the crime that the cumulative of effect the above deprived Appellant errors of a fair trial. also contends: by failing prospective juror that the trial court erred to interview a camera; prosecutor’s that the cross-examination of a defense wit- Appellant alleged proved ness was extraordinary any unfair. has neither nor justify circumstances which would his failure to raise Therefore, appeal. they these issues are waived. See 19 4(b) (c) (Supp. 1978-79). P.S. § 1180— 819, 820-21 (1975-76). Therefore in order to show that a motion for in venue change would have been of arguable merit, must demonstrate that pre-trial publici- ty did in fact create a fixed as to or guilt innocence in the jurors, minds of the prospective opinion could Hoss, See Commonwealth v. not be set aside. readily 364 A.2d 1340 (1976). case, In the instant the record on post conviction does not hearing simply support appellant’s implicit conten tion the jurors that held unalterable preconceived opinions as to his At the guilt. hearing appellant PCHA offered the affidavit of one Mrs. Mattson wherein she stated that anoth woman, Waite, er (Mattson) Mrs. had told her that several fellow of the man employees ultimately selected as jury Waite) foreman had told her that (Mrs. to his prior service, summoned for jury the foreman had expressed his belief that appellant guilty. Noting correctly that affidavit contained triple hearsay, the PCHA court ruled the affidavit inadmissible. other only evidence even re motely showing relevant to a of actual jury prejudice was equivocal one courtroom observer to the effect that he thought prospective he saw jurors mingling in courthouse corridors with witnesses and the victim’s family. has not provided any evidence showing that his trial counsel was aware of the purported statement made by foreman, nor has appellant shown that if there was jurors, witnesses, intermingling and relatives of the vic tim, counsel cognizant fact, In at fact., PCHA hearing appellant’s trial counsel testified that he was not aware of such any objectionable juror exposure. Nor is there any showing that his lack of awareness of these was as a allegations result of his failure to exercise due in his diligence preparation and trial of the case. Confront ed with the information available to him there was no basis upon which to assert an arguable claim for change venue. Even if these improper jury established, contacts had been it would have supported particular a removal of the jurors concerned. It would not have provided a basis for *5 a fair not drawn in concluding that could have been Therefore, County. Mercer counsel could not have been to ineffective for file a futile motion. Common- See Robinson, wealth also trial

Appellant alleges that counsel was ineffec tive in his handling appellant’s testimony. recall trial of which context out makes this assertion was appellant Appellant’s as follows: defense to murder in primary negate dictment was to malice. See Commonwealth v. O’Searo, was one of the supra. Appellant last witnesses in as defense case-in-chief. On examination well as cross-examination, during testified to the effect appellant encounter, that fatal during “something him” grabbed and he to gun holding caused the was and kill the discharge victim. after Shortly testimony, this the trial was recessed for the weekend. counsel,

On the defense Monday, upon appel- lant’s recalled as a request, appellant witness and asked him what gun caused the to At that discharge. respond- time he that, ed hand “something grabbed my and it . .” pulled Later day that trial court in its to charge referred that as follows: testimony recalled,

“Mr. he he O’Searo and was asked if knew off, what that gun go caused He said today. it, know, someone hand I grabbed my pulled that is all or words to that effect.”

From sequence of events establish seeks to several for predicating bases trial counsel’s ineffectiveness. Appellant permit attacks counsel’s decision his client to be recalled as a witness and was not properly prepared for recalled. to mini- attempts mize the original difference between his as to the weapon’s cause of the and his discharge upon statements being recalled. The specific something grab- reference his bing weapon hand held the was obviously signifi- cantly supportive more claim of his accident than the previous reference to vague something some un- grabbing specified part From a body. reading post

conviction hearing testimony it is fair to conclude that this precise more version was first related to trial counsel in *6 Sunday evening conference during which the decision to recall recalled, was made. When appellant testi- fied in accordance with his statements to counsel on the previous evening.

At the outset it is clear that there is no merit to the claim that he was not properly prepared give this testimo ny. Since the second version strengthened the defense that was being pressed throughout the trial the position of appel lant only could have been enhanced by having the hear jury this testimony. The fact that a jury may not believe a witness’s version of the facts is an present ever hazard. Nor was the hiatus between the conclusion testi original mony Friday before the recess and his recall on Monday when the trial reconvened so great as to prevent it from a reasonable trial tactic attempt to introduce this evidence through the source only available.

Further, appellant cites counsel’s failure to object to the court’s reference to the fact that given on Monday. While as we indicated in our previous opinion in this matter that the reference could conceivably have been interpreted as suggesting of a possibility fabrication, recent nevertheless it was an accurate statem ent.2 It was clearly a tactical decision as to whether to raise objection an might possibly highlight the state ment or to allow it to pass without objection in the hope that it would not be interpreted. so In view of the innocuous original opinion refers to the statement in our in this matter: “Although challenged charge possibly statement in the could interpreted by jury have been as an indication that weekend, had exception created a fabrication over the no portion judge’s charge.” taken to this of the O’Searo, supra, Commonwealth v. 466 Pa. at 352 A.2d at 33. We believe an language undue inference has been drawn from this by appellant. suggest objection We did not intend to that an language would have been meritorious. Our statement question indicated that we timely would not consider the since a objection had not been made. reference, character of the we believe that the decision not Commonwealth v. to object was a reasonable trial strategy. Roundtree, Common- (1976); 469 Pa. Sullivan, wealth v. Com- (1973); 450 Pa. Gambrell, monwealth 450 Pa. A.2d is order of court affirmed. MANDERINO, J., concurring opinion. filed a MANDERINO, Justice, concurring.

In appellant’s original appeal I dissented believing that appellant was entitled to new trial a because the judge charged the at pointing gun act a vital part of another’s is body enough from which to infer a *7 wilful, and premeditated killing. Commonwealth deliberate v. O’Searo, This issue has now finally litigated been under the Post-Conviction 1966, Act, (1965) 1580, Jan. 1 et seq., Hearing P.L. § et seq., P.S. 1180-1 and I (Supp.1978-79) therefore join § majority affirming order of court. A.2d Pennsylvania

COMMONWEALTH of WILLIAMS, Appellant. Kevin Supreme Pennsylvania. Court of

Argued April 1978.

Decided 1978. Nov. Reargument Feb. Denied