467 A.2d 364 | Pa. Super. Ct. | 1983
Wayne Pritchett was tried by jury and found guilty of first degree murder, conspiracy and weapons offenses in connection with the ambush shooting of a rival gang member in Philadelphia on September 19, 1973. A sentence of life imprisonment was affirmed by the Supreme Court on direct appeal. Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786 (1976).
Pritchett was arrested at or about 3:15 a.m. on October 23, 1973. Upon arrival at the Police Administration Building, he was left alone from 4:02 a.m. until 5:27 a.m. At that time a police detective entered the room and advised Pritch-ett of his Miranda rights. Pritchett waived those rights and gave an inculpatory statement in which he said that he had been a member of the gang which had killed the victim and that he had been present with the killer at the time of the shooting. He denied, however, that he had done the shooting. This interview continued until 7:15 a.m., when Pritchett’s father was advised that his son had given a statement. At 8:00 a.m., Pritchett was taken to the rest room, given water and again left alone. At 9:25 a.m. he
Trial counsel filed a pre-trial motion to suppress Pritch-ett’s confession on grounds that the police had used coercion, including physical abuse, threats and vile language, to extract the confession and that Pritchett had been too frightened to comprehend what he was signing. The motion was denied, and the objection was not renewed at trial. On direct appeal, counsel attempted to argue that Pritch-ett’s statements had been the result of unnecessary pre-ar-raignment delay and that their suppression was required by Pa.R.Crim.P. 118 (now Pa.R.Crim.P. 130) and the holding in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). The Supreme Court held that the issue had not been preserved by prior objection and refused to consider it. Commonwealth v. Pritchett, supra. Pritchett contends that trial counsel was ineffective for failing to preserve the issue for appellate review.
We determine first whether there is arguable merit to the claim that appellant’s confessions were the product of undue pre-arraignment delay. Only if we determine that there would have been arguable merit to such a contention must we inquire as to counsel’s reasons for not preserving the claim. See: Commonwealth v. Tann, 500 Pa. 593, 599-600, 459 A.2d 322, 326 (1983); Commonwealth v. Linch, 318 Pa.Super. 590, 592, 465 A.2d 1010, 1011 (1983); Commonwealth v. Costanzo, 309 Pa.Super. 267, 271-72, 455 A.2d 153, 155 (1983); Commonwealth v. Tran, 307 Pa.Super. 489, 496, 453 A.2d 993, 996 (1982).
Pritchett’s arrest was in 1973, well before the Supreme Court’s decision in Commonwealth v. Davenport,
Only two and one-quarter hours had elapsed between appellant’s arrest and his initial confession. Excluding the
The fact that the formal written statement in which appellant admitted to pulling the trigger of the murder weapon was not signed until 5:20 p.m., does not require a different result. The additional delay, explained in part by Pritchett’s resting, eating a meal and conferring with his father, the need to resolve the conflict between appellant’s statement and that of a co-defendant, and the use of the polygraph,
We conclude, therefore, that appellant’s inculpatory statements were not subject to suppression on grounds of unnecessary pre-arraignment delay and that a contrary argument would have been lacking in merit. It follows that trial counsel was not ineffective for failing to preserve the issue for review on direct appeal. See: Commonwealth v. Keith Smith, supra.
In Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976), the Supreme Court established a per se rule that an accused under 18 years of age may not effectively waive his or her rights against self-incrimination
Pritchett’s trial had been completed prior to the decision in McCutchen. However, his appeal had not been argued when McCutchen was decided. He now contends that because he was 17 years, 8 months and 25 days old at the time of his arrest, prior counsel was ineffective for failing to raise a McCutchen issue on appeal.
It is well settled that counsel will not be deemed ineffective for failing to raise meritless claims on appeal. See: Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980); Commonwealth v. Tarver, 491 Pa. 253, 420 A.2d 438 (1980); Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980); Commonwealth v. Donald Jones, 301 Pa.Super. 364, 447 A.2d 1009 (1982); Commonwealth v. Hook, 300 Pa.Super. 181, 446 A.2d 290 (1982); Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 422 A.2d 1126 (1980); Commonwealth v. Morgan, 273 Pa.Super. 124, 416 A.2d 1121 (1979); Commonwealth v. Fox, 272 Pa.Super. 8, 414 A.2d 642 (1979). Here the claim was meritless because it had not been preserved by objection during or prior to trial. Thus, if counsel had attempted to raise a McCutchen issue on appeal, it would have been rejected because the issue had not been preserved for appellate review.
When appellant was arrested on October 23, 1973, there was no provision in Pennsylvania law requiring that a waiver of Miranda rights by a juvenile be preceded by an
The heart of the McCutchen rule is the concern that the immaturity of a minor defendant requires its added protection. See Commonwealth v. Barry Smith, 472 Pa. 492, 372 A.2d 797 (1977). Since the post-trial motions occurred before the definitive articulation of the McCutchen concept, some latitude must necessarily be allowed in a determination as to whether or not the issue was in fact raised. Nevertheless, the preservation of the question must depend on it being established that the gravamen of the concern was presented as a basis for relief. In this instance it is clear that the attack upon the confession did not touch upon those considerations which led to the formulation of the McCutchen doctrine.
Moreover, the Barnes and Chaney decisions providing for the retroactive application of McCutchen to then pending cases can in no way be construed as allowing new issues to be introduced which were not then under consideration in those proceedings. The retroactive appli*369 cation of McCutchen represented the implicit acceptance of the view that fairness dictated the applicability of the newly announced principle to all similarly situated litigants. Commonwealth v. Hill, 492 Pa. 100, 111, 422 A.2d 491, 497 (1980) (Opinion in Support of Reversal, Roberts, J.); Commonwealth v. Cain, 471 Pa. 140, 167, 369 A.2d 1234, 1248 (1977) (Opinion in Support of Affirmance, Pomeroy, J.). In such an instance it is fair to conclude that all of those litigants were in the same situation and the outcome of their lawsuit should not depend on a race to the courthouse. However, a different situation obtains where one has seen fit to raise the objection and another has not. We therefore conclude that appellant has failed to preserve the McCutchen claim for our review, (emphasis added).
Id. 498 Pa. at 411, 446 A.2d at 1271. Because a McCutchen issue, if raised on direct appeal, would not have been considered, prior appellate counsel cannot be deemed ineffective for failing to inject the issue at that time. He cannot be held ineffective for failing to do a useless act.
So also, counsel cannot be deemed ineffective for failing to raise a McCutchen issue at trial. He will not be deemed ineffective for failing to predict future developments in the law. Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977); Commonwealth v. McCloud, 312 Pa.Super. 29, 42, 458 A.2d 219, 225 (1983); Commonwealth v. Warren, 307 Pa.Super. 221, 224, 453 A.2d 5, 7 (1982); Commonwealth v. Brinton, 303 Pa.Super. 14, 21, 449 A.2d 54, 58 (1982). Pritchett’s trial preceded the McCutchen decision by more than a year. Although the legal profession had been given some warning that a per se rule requiring the presence of an interested adult was being considered by the Supreme Court in its decisions in Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) and Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975), these decisions came too late to alert Pritchett’s trial
At trial, counsel made an oral request for an instruction that the jury could find Pritchett guilty of involuntary manslaughter. This the trial court refused. Appellant contended at the P.C.H.A. hearing that counsel’s failure to argue on direct appeal that the trial court’s ruling was erroneous constituted ineffective assistance of counsel.
Under current law, an accused is entitled to a jury instruction on involuntary manslaughter upon request if the same has been made an issue in the case, and if the facts will support such a finding. Commonwealth v. D’Ambro, 500 Pa. 303, 307, 456 A.2d 140, 143 (1983), quoting Commonwealth v. Williams, 490 Pa. 187, 190, 415 A.2d 403, 404 (1980); Commonwealth v. Keaton, 494 Pa. 566, 568, 431 A.2d 999, 1000 (1981); Commonwealth v. Morris, 492 Pa. 565, 567, 424 A.2d 1336, 1337 (1981); Commonwealth v. White, 490 Pa. 179, 185, 415 A.2d 399, 402 (1980). This rule originated with a triumvirate of 1977 plurality decisions by the Supreme Court which interpreted the “new” Crimes Code, effective June 6, 1973, to require that a jury instruction on involuntary manslaughter be given even where there had been no separate indictment for that crime. See:
Although Pritchett was charged and convicted of murder under the Crimes Code, we decline to find that counsel was ineffective in 1974 for failing to predict the Supreme Court’s decisions in 1977. In Commonwealth v. Green, 487 Pa. 635, 410 A.2d 792 (1980), Green had been convicted of
The record supports the trial court’s determination that prior counsel was not constitutionally ineffective. The dismissal of appellant’s P.C.H.A. petition, therefore, was proper.
Order affirmed.
. The record in the instant proceedings suggests that appellant’s surname is more correctly "Pritchett.”
. A polygraph examination is a necessary step in the investigative process, and delay related thereto is not unnecessary. See: Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982); Commonwealth v. Smith, 487 Pa. 626, 631, 410 A.2d 787, 790 (1980); Commonwealth v. Hitson, 482 Pa. 404, 407, 393 A.2d 1169, 1171 (1978); Commonwealth v. Blagman, 458 Pa. 431, 436, 326 A.2d 296, 299 (1974); Commonwealth v. Keith Smith, 317 Pa.Super. 118, 126,
. In Roane, the Court ruled that an accused's confession should have been suppressed where his mother wanted no statement taken without counsel, but the police nevertheless persuaded the accused to confess. In Starkes, the accused’s mother had been present to advise her son, but she was not informed of his constitutional rights before she advised him to give a statement.
. In dismissing post-trial motions, the court en banc held that appellant had waived the involuntary manslaughter issue by failing to include it in written post-trial motions. However, counsel had submitted written motions on July 19, 1974, seven days after the verdict, which included an allegation that the court had erred in “refusing to grant further instructions as requested by defendant during oral exceptions to the charge.” The only additional instruction requested was for a charge on the lesser offense of involuntary manslaughter. Therefore, the issue was adequately raised in post-verdict motions. The Commonwealth’s argument to the contrary is without merit.
. Previous law in Pennsylvania derived from the early holding in Commonwealth v. Gable, 7 Serg. & R. 423 (Pa.1821) that "involuntary manslaughter is never a permissible verdict on a murder indictment.” Commonwealth v. Garcia, supra 474 Pa. at 455-456, 378 A.2d at 1202. See, e.g., Commonwealth v. Jackson, 450 Pa. 417, 419 n. 2, 299 A.2d 209, 210 n. 2 (1973); Commonwealth v. Hoffman, 439 Pa. 348, 357, 266 A.2d 726, 731 (1970).