Commonwealth v. Smith

A.2d Pennsylvania COMMONWEALTH of v. SMITH, Appellant.

Thomas Pennsylvania COMMONWEALTH of v. GARVIN, Appellant.

David Pennsylvania COMMONWEALTH BRADLEY, Appellant. James Superior Pennsylvania. Court of

Argued Nov. 1982.

Filed Oct. 1983. Reargument Garvin, Granted 16, 1983.

Dec. Reargument Denied in Bradley,

Dec. 1983. Petition for Appeal Allowance of Dec. Denied 1983. Phelan, Jr., Narberth, Smith, (No. appellant for James J. 1229).

George Henry Newman, Philadelphia, Garvin, appel- (No. 1332). lant Rotfeld, Bell, (No. appellant Blue for Bradley,

Bruce M. 1465). Stotland, Attorney,

Maxine J. District Philadel- Assistant Com., phia, appellee. for SPAETH, YOORT, and der JJ.

Before ROWLEY VAN ROWLEY, Judge: appellants were tried

Commencing September assault, charges rape, simple a on of jointly jury before conspir- and criminal involuntary deviate sexual intercourse 19, 1980, September jury returned a verdict acy. On guilty rape of the crimes of and finding Appellant Garvin finding Appellants Smith and simple assault and verdicts found not guilty rape. Appellants each of were Bradley 6, 1981, remaining charges. of the after an guilty May On evidentiary hearing, appellants’ post-verdict motions were argued and denied. Garvin and each sen- Bradley were tenced to a term years imprisonment serve of five to ten rape; Garvin was sentenced to an additional term of two probation on the years simple assault conviction to be served to his sentence for consecutively rape. Smith was sentenced to seven and one-half to fifteen years imprison- ment on his conviction for The trial rape. court denied oral motions to modify the sentences made on behalf all three appellants and later denied written motions on submitted Appellants behalf of and All appel- Garvin Smith. three lants subsequently separate appeals filed to this court. Because they grow out of the same factual situation and issues, present many common the appeals were consolidated for review. statement

Only forth; brief of the facts need set now be background the factual in greater will be examined detail as need assignments be connection with each of the of error. Appellants were of gang raping prosecutrix convicted an alleyway. The victim had earlier taken a quantity and drugs imbibed some The beer. combined effect of the and drugs alcohol her perception was make unclear and gait However, her unsteady. she specifically remembered meeting the three appellants on a street in Philadelphia during 5-6, 1980, the evening May and she also remem- bered that each of them had had sexual intercourse with her while she “[t]rying fight (N.T. 9/8/80, was away.” 3.20.) 3.18 pp.

I Combined, appellants raise more than fifty assignments of error. A great many of these issues ably were discussed by the trial judge, Gordon, Honorable Levan and need Also, not be considered further.1 several issues have been waived, frivolous, are or are without merit. by Appellant properly by Judge

1. The issues raised Smith and resolved appellant’s Gordon are set forth in brief as follows: claim of error any has waived Appellant Garvin court, In this charge jury. to the to the court’s respect with in failing erred to the trial court argues appellant contrary to the evidence? Was the verdict I. weight contrary of the evidence? to the the verdict II. Was contrary to the law? Was the verdict III. denying the bills? demurrers to court err in IV. Did the failing grant to the defendant a severance court err in to V. Did the [Smith]? VII. Did monwealth for VIII. Did a the courtroom ...? X. XI. Did the IX. Did the court courtroom develop nation of the Did the court err in the court err in in handcuffs on the complainant’s court err in juror complainant? its failure to ^[******] err in or jurors denying denying failing failing past complete see the final conduct as to defense counsel an to remove [a to a motion for a impose day defendant discovery? of trial? sanctions spectator] drugs psychiatric exami- [Smith] opportunity and alcohol? on the Com- leave the ... from The issues raised him XVI. Did be sent XVIII. rape ...? XVII. XIX. Did the court err in evidence was insufficient XX. Was the evidence for a directed a directed simple assault. simple assault ...? 1. The are set forth in his brief as Did the court err in to the evidence was insufficient Was the evidence insufficient verdict or dismissal of the court err in jury verdict or dismissal ^[******] ... ? insufficient ...? permitting denying petitioner’s denying petitioner’s [Smith’s] Garvin and follows: simple support of the to sustain the conviction [the to sustain the assault properly complainant’s] clothes to convictions rape [Smith’s] [sic] charge resolved conviction for ... request ? since the rape request against and for for 3. directed course with another 54 ... The court erred charging Appellant with verdict [sic] ****** ^[******] person on the denying Appellant’s third count of Bill not feloniously his spouse engaging who was [Garvin’s] of Information No. in sexual inter- unconscious. motion clothing sending exhibits---- out 7. The court erred restricting Appellant’s cross-exami- [Garvin’s] The court erred in 8. drug drug abuse and prosecutrix to the effect her of the nation credibility. dependency had on her against Bradley properly by Appellant resolved The issue raised his brief as follows: him is set forth in grant they refused to a new erred when [sic] A. The Trial Court weight against was of the grounds that the verdict trial on the evidence. the adequately jury instruct on the of subject “reasonable resolution.”2 The court had been asked the to by jurors by repeating assist them the they instructions after had However, retired to initially objection deliberate. no to this part charge by of the was made appellant’s trial counsel. issue, therefore, The preserved has not for appellate been Clair, review. 418, 458 Pa. 326 A.2d (1974). result, Anticipating this appellate counsel as- court, time, serts in this for the first that trial counsel was failing ineffective for to to this object portion of the trial However, present court’s instructions. appellate counsel also represented post-trial at the stage Garvin of these He proceedings. supplemental post-trial filed motions3 and was present post-trial hearing at a at which he called Garvin’s trial to testify counsel regarding alleged her inef- respects. fectiveness in The other issue trial of counsel’s point on this ineffectiveness not was raised at any time before the trial court. Because this issue was not “raised as an at issue the earliest in the stage proceedings at which longer no representad]” appellant, the [trial counsel] us. Commonwealth v. Hub- issue not is before properly bard, 472 Pa. 276-277 nn. 6 and nn. 6 reason, For the same Appellant Garvin cannot now attack trial counsel’s regard effectiveness with to the jury being to permitted clothing by obtain the worn the on victim the of the night during attack for inspection by Appellant 2. This issue Appellant’s present is "5” raised Garvin. argue did defining to trial that it court had erred in press of argument appeal. ‘‘threat force” but not that does on The appeal being, issue on is defining stated "The court erred in threat prevent person that force would resistance a of reasonable However, rape____” charge in its on resolution text of the argument, Appellant complains only that the court’s definition of reasonable resolution was error. record, Although copy 3. there is no of these motions in the the trial 18-19.) quotes opinion. (Tr.Ct.Op. court from this document in its at began representation Present counsel his Garvin on 9, 1981, hearing post-trial March well on before motions. time, first appellant, Nor can for the their deliberations.4 or in this court the trial court’s instruction trial attack object failure to trial court’s instruction counsel’s used prior only inconsistent statements could be and not as evidence.5 Final- impeach credibility substantive has also waived consideration Appellant Garvin ly, under of the trial court’s reasons for his sentence adequacy Riggins, Commonwealth 377 A.2d 140 Pa. appellant’s The filed on (1977).6 modify motion to sentence Riggins has, not issue did raise issue. Such behalf therefore, preserved appellate not been review.

Furthermore, correctly inasmuch as the trial court that not its in allowing it did abuse discretion determined courtroom,7 in spectator to remain the we find no “nodding” suggestion in trial Appellant merit Garvin’s that on failing to move for a mistrial was ineffective for cannot be ineffective for ground.8 same Counsel found v. Hub Commonwealth to raise a meritless claim. failing bard, 472 Pa. at 278, 372 A.2d at 696. Having properly it the trial court ruled that had not

4. concluded that allowing clothing, jury supra, see n. erred in to obtain the 1, “XVI”, Nahodil, v. 462 Appellant Smith’s issue see also Commonwealth 1114, 301, (1975), but Pa.R.Crim.P. we cannot con- Pa. 91 any without as well that assertion of ineffectiveness is merit. clude failing meritless cannot ineffective for to raise a claim. Counsel be Hubbard, 472 Pa. at 372 A.2d at 696. Commonwealth appended Appellant is Garvin’s issue "9". Counsel has to his 5. This condemning summary his this issue a footnote own role treatment of failing preserve appeal. such to this issue for We discuss tactics in in detail, event, any infra, accompanying we at notes 26-28. In note text point arguable appellant’s argument merit. on this is without that Appellant prior were does not tell us whose statements inconsistent testimony hopes gain given he to at trial nor what substance with by Furthermore, argument appellant’s premised on an it. is incorrect Waller, Pa. n. of the law. See Commonwealth v. statement (1982). A.2d n. 2 part appellant’s “10” issue is of issue in brief. 6. This raised 1, supra, Appellant Smith’s issue See n. “IX”. 7. Appellant Garvin’s issue “6”.

8. Additionally, Smith Appellant claims that court the trial erred in his for denying request However, a continuance. the record reveals no for request a continuance appel- counsel; lant’s court could not err a motion denying never made.9 do not with agree

We also Appellant Garvin’s conten tion rape that the sentences simple for and assault should is merge.10 (N.T. It clear from the testimony 9/8/80 at 3.17-3.18) appellant that struck the on victim the face after he had her. The raped victim that punched testified he her in the side right of her face only after she had avoided appellant’s attempt to her force to engage an act of oral sex. The two incidents were thus separate and distinct jury could conclude properly Appellant Garvin had committed criminal two acts. The force used in punching the complainant could not have been used to her overcome respect volition with rape because that crime had already completed. been See Wojcie chowski, Pa.Super. 1, 426 A.2d 674 likewise agree

We do not Appellant with or Garvin Appellant respective Smith that their sentences excess are Appellant ive.11 Garvin years was sentenced five to ten imprisonment for rape followed by years probation two simple assault. Smith was sentenced to seven and one-half to years imprisonment fifteen rape. Rape for § is a felony degree, the first subject Pa.C.S.A. ing each to appellant the of a possibility prison maximum § twenty years. term of 1103(1). Pa.C.S.A. Simple assault is in this case a misdemeanor in the degree, second § 2701(b), 18 Pa.C.S.A. Appellant and Garvin’s conviction permitted for this crime the trial to impose court a sentence Appellant 9. Smith’s issue "VI”. Appellant

10. This is another of the issues Garvin raises at ”10” his Contrary Commonwealth, argument brief. to the of the it was raised by before the court modify trial means of a written motion to sentence. 11. This is the third and last issue raised by Appellant Garvin at “10”. It Appellant is also Smith’s issue "XXI”. § 1104(2). 18 Pa.C.S.A. years. to an additional two up

for Thus, well within actually imposed the sentences were modify Furthermore, in his motion to guidelines. statutory having been arrested sentence, admitted to Appellant Smith “Disorderly having pleaded guilty for five times and judge The trial Conduct, Burglary.” Assault and Simple in imposing record upon appellant relied Smith’s specifically co-defendants; upon him then his upon sentence greater a any had Appellant Bradley nor Appellant neither Garvin Common- 128-129.) See (N.T. 5/6/81 at record. prior 464, 390 A.2d 1330 Thurmond, v. Pa.Super. wealth that the of the record also reveals (1978). An examination Sentencing of the guidelines complied trial court with §§ v. See Commonwealth seq. 9701 et 42 Pa.C.S.A. Code. Garrison, 326, 437 A.2d 407 Under Pa.Super. any not in circumstances, imposed the sentences were these turn next to excessive, manifestly so.13 We let alone way three strenuously by appel- most all argued the two issues lants.

II these, for a number of appellants In claim the first Assist to the closing argument jury reasons that Fleishman, Esquire, was Wendy Ms. Attorney, District ant record, we of the thorough After a review improper.14 disagree. disin- as "minor” is Appellant's of these offenses characterization

12. burglary, a respect genuous, particularly with to the conviction degree. felony See 18 Pa.C.S.A. 3502. § of the first large argument upon the number of Appellant is based Garvin’s 13. ties, community good and persons to his character who testified rape. night The parties of the of all on the well as the intoxication Garrison, highly rejected supra, analo- court in Commonwealth appellant’s sen- gous argument. We likewise cannot conclude must be made shorter. tence "XII”, "XV”; Appellant Garvin’s Appellant “XIV”and Smith’s issues 14. "4”; Appellant Bradley Bradley’s issue “D". Both and issue respect with claims of ineffectiveness Appellant Garvin raise text, Inasmuch as purported discussed in the misconduct infra. error, arguments of prosecutorial the effectiveness both find no we beyond It now cavil that the prosecuting is attor ney must conduct herself such a manner as to aid rather than finding inhibit the truth function of the jury. In Barren, Commonwealth v. 492, 499-500, 273 Pa.Super. 1156, (1979), A.2d 1159-1160 this court summarized the specific guidelines underlying principle.

During closing argument prosecutor may refer to all facts properly evidence and may argue all reasonable from such evidence. Commonwealth v. Gra inferences ham, 417, (1976). However, 467 Pa. 358 A.2d 56 it is improper argue facts not proved or to misstate the Commonwealth v. Toney, evidence. 243, 474 Pa. Patterson, Commonwealth v. (1977); A.2d 310 247 Pa. 527, (1977): Super. 5.8(a) Sections and 5.9 of the ABA on Project Standards for Criminal Justice Relating to the Prosecution Function. This is peculiarly so where facts not of record are used to inflame the Commonwealth v. passions or prejudices jury. Patterson, supra. Moreover, there is no longer any room for doubt it is improper for a prosecutor express personal his belief as to the credibility either prosecution or defense witnesses. Commonwealth v. Kuebler, Common (1979); 484 Pa. 399 A.2d 116 wealth Pfaff, Com (1978); 477 Pa. 384 A.2d 1179 Bullock, monwealth v. 266 Pa.Super. 405 A.2d 943 appellants Hubbard, are without merit. supra. Commonwealth v. present represented Inasmuch as Garvin’s counsel also him at the post-trial stage, present present counsel’s failure to raise error and testimony following on the remarks renders the claim of ineffective- waived, Hubbard, ness as to them 472 Pa. at 276-277 n. 372 A.2d at n. 6: you advantage 1. "But would perfect take of her. Isn’t she the victim____” (N.T. 460.) at 9/17/80 tells, you. 2. you "That’s what he That’s what he wants to believe (N.T. 466.) ....’’ at 9/17/80 consciences, your 3. "You have to live with gentle- own ladies and (N.T. 468.) men. ..." at 9/17/80 questioned. go through 4. "You have been ques- You had to tioning beginning. experi- in the You know it’s an uncomfortable you background, ence. She told intimate details about her about family, happened night. Why her about what to her that would she (N.T. you 476.) come forward and tell those facts?” at 9/17/80

(1979); Gilmore, 245 Pa.Super. (1976); 369 A.2d 276 ABA Relating Standards to the § Function, 5.8(b). Prosecution determining “In whether the established bounds of propriety in have been exceeded closing argument, we must ever be mindful of the ‘possi that the bility jury give special will weight prosecu to the tor’s arguments, not only because of the prestige associ office, ated with his but also because of the fact-finding ” facilities presumably to available him.’ Common 576, 583, wealth v. Van 483 Pa. Cliff, 397 A.2d But not all flexibility circumscribed, is however. As this court in stated Commonwealth v. Youngkin, Pa.Super. 417, 430, (1981): every intemperate or uncalled by for remark

[N]ot prosecutor requires Rather, a new trial. the language must such be that its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility defendant, towards the so they could not weigh the evidence and render a Moreover, true verdict. the effect of such remarks is largely dependent upon the atmosphere trial, at and the proper taken, action to be upon objection, is within the discretion of the trial court. when the cumulative effect any improper re- [But] marks so prejudices the jury prevent trial, to a fair (Citations reversible error omitted.) exists.

We these apply standards to the allegedly re- improper marks of the Assistant District Attorney.

Appellant Smith’s first assigned error is the Assist ant District Attorney’s statement during closing her re marks that:

They didn’t in bring So, snow machine for that snow. gentlemen, ladies and the defense telling you is there is guesswork here, magic hallucinations.

This coat is covered with blood.

(N.T. 463.) 9/17/80 at The first sentence quoted Smith is completely out of context. Ms. Fleishman had been describ- and use of circumstantial ing jury meaning for the In she stated: evidence. full He to cjounsel asking you guess. you is to said

[Defense guesswork. I to it’s not guesswork. you this is all submit asking guess thing one you We are not about Northeast, case. If in the or Philadel- you were South in the you up or in Oak Lane and phia, West woke out, night sleep went to it’s cold morning you before —the December, clear, night you go it’s when beautiful morning You at 9:00 a.m. the next sleep. up wake go open your it’s out and door and sunny, you you but Now, ground. find snow on the that’s circumstantial you it You didn’t see it Nobody evidence that snowed. snow. down, snowing. coming you saw it You didn’t see it but Now, Hollywood. They know it snowed. it’s not didn’t So, in bring a snow machine for the snow. ladies and gentlemen, telling you guesswork the defense is there is here, magic, hallucinations.

This coat is covered with blood.

(Id.) statement, context, prosecutor’s The taken in is a of an part appropriate response argument and to the made on rebuttal Thus, claim it appellants. behalf exceeded the proper argument bounds of is without merit.

Counsel also attacks the of the accuracy state ment the coat concerning being “covered” with blood. It is undisputed it, that the coat did some on have blood but the a It is quantity only “spot” blood was blood. also coat to the at the undisputed displayed jury that the was time the later jury permitted remark was made and the was jury during to have the coat room for examination Thus, their District deliberations. while the Assistant At it not torney’s exaggeration, prejudi statement was an was cial afforded jury contemporaneously because was an means to make its opportunity and the own evaluation and (See 20.) Tr.Ct.Op. its conclusion. at Further draw own more, support rationale counsel to an only offered prosecuting to this statement was that the attor- objection ney using had been the coat as “a prop” during her summa- tion.15 Because the coat properly was admitted into evi- dence, there could no be error in allowing jury to see it.

Next, Appellant Smith contends prosecutor that the misstated the evidence when she said: said,

She “I was bleeding.” said, She “I had [the victim] a gash my vagina.” The doctor came in. Dr. Harper [Hopper] examined her at Jefferson Hospital and he said had rip she to her labia two to three centimeters. (N.T. 464.) at 9/17/80 assertion,

Contrary appellant’s all of Ms. Fleishman’s remarks correctly reflect the testimony of the The witness. complainant was asked on cross-examination to describe her injuries jury. to the She testified as follows:

I scrapes had and on my bruises face. I had bite marks on my my chest and stomach. I had a small gash my on I vagina. scrapes had and legs. bruises and cuts on my knuckles, I had cuts on my I split had a chin. (N.T. 3.105.) 9/8/80 at (Emphasis supplied.) Furthermore, Dr. Hopper Bruce D. of the Obstetrics and Gynecology Department of Thomas University Jefferson Hospital testified that he had examined the shortly victim after the incident and found that she had sustained several injuries. He described one injury such as “a two-by-three centimeter, abrasion, or two-to-three linear which was out- labia____” side or away (N.T. from the midline of the left 5.64.) at 9/10/80 He further defined an abrasion as “a straight tear. It’s not surgical cut. It can be any —like type of jagged opening.” Describing an rip” abrasion as “a during summation is not error in this case because such is fully supported characterization the by testimony. Appellant Smith also contends that the Assistant Attorney District misstated the evidence when she argued jury complainant to the that the could not have removed the provided by Appellant 15. This rationale was Garvin’s trial counsel and by joined Appellant any Smith’s counsel. At no time has other argument support regard been advanced to a claim of error with to particular portion Attorney’s this of the Assistant District summation. intoxicated, the straps from her overalls because she was on (N.T. 465- .ground and her coat was still on. 9/17/80 at 466.) In making argument, prosecuting attorney this the attempting point jury to out for the what she believed was put to internal contradictions the “consent” defense be argument permissible This by Appellant forth Garvin. was on testi- because it is based reasonable inferences from the had mony. Appellant Garvin testified that he and (N.T. of stumbling” victim had been “sort down the street 303) 9/16/80 at and that the victim had fallen three times. (Id. 302.) at other had Several witnesses also testified noticeably irregular the victim had been in her and speech Furthermore, gait. Appellant Garvin testified that the vic- (Id. 320.) tim “didn’t take it off at all.” at The [her coat] had heard from the jury also victim that she had been wearing straps snaps overalls with shoulder that had near (N.T. 3.17.) her shoulders. 9/8/80 at She also stated that unzippered Garvin had her or coat and had Appellant jacket (Id.) snaps. started to undo those The Assistant District Attorney’s point permissible summation on this was be- that, condition, cause she to the in her merely jury observed get needed to help straps victim would have overall her off or she would have had take coat off and that Appellant say helped Garvin did not that he her but that he kept Thus, had testified that she her coat on at all times. out for the prosecuting attorney merely pointed jury some of the and potentially aspects testimony troublesome logical asked them to reason to a conclusion from what they had heard. find no error in regard. We this further objects prosecutor’s Smith to the rhetorical did she question, “How roll herself [the victim] along ground dragging ripped herself so that she her grounds appellants, labia?” The offered in cham-' only bers, support objection that the was characteriza “rolling ground” tions of around on the rip” “a to the (N.T. improper. 484-485.) victim’s labia were 9/17/80 at above, designation rip As discussed the of the wound as a Also, fully comports with evidence. several witnesses did testify that the Furthermore, victim fell. in their clos- ing arguments, the attorneys representing the appellants* each repeatedly referred to the complainant’s intoxicated and drugged 381, 382, 393, condition. at 419, 432, {Id. 449-450, Each e.g.) attorney also discussed the source of injuries. victim’s for Appellant Counsel Bradley stated:

I submit that there is no presented evidence to you how got she these All injuries____ you speculation^ have is either them got crawling around on ground, S]he her____ got she them as a result of somebody injuring (Id. 394.) at (Emphasis supplied.) Counsel for Smith stated: The doctor Hopper] did indicate although there [Dr. were abrasions contusions of the body, that [victim’s] these abrasions and contusions were consistent with someone falling down on several occasions and someone around on crawling ground, also.

(Id. 424-425.) at (Emphasis supplied.) Counsel for Appellant Garvin stated:

Dr. Ulin testified injuries that her were consistent with somebody who had been rolled or dragged, who had been he but also testified that her injuries were consistent with who had fallen somebody a number of times or had dragged across a [rough] herself surface.

(Id. 448.) at (Emphasis supplied.) arguments Given these by defense counsel and the testimo ny summarized, the Assistant District rhetori Attorney’s question cal a response was fair and not error. Common Parente, 446, 453, wealth v. 294 Pa.Super.

Appellant Smith also claims prosecutor that the committed reversible error by asking, “Why would [the come to court and tell each of you that Thomas victim] Smith forced penis vagina?” (N.T. his into her 9/17/80 at 470.) question This was both fair recitation of the testi (N.T. 3.18-3.20) mony 9/8/80 at and a fair way respond argument of each defense counsel that the victim of effects of the could not be believed because the combined and alcohol which caused “blackouts” or “blankouts” drugs (See 404-407, 381-398, N.T. memory. in her 9/17/80 at 418-419, 421-424, 426-428 Appellant Bradley], 409-414 [for 433-444, 446, 449, 451-454, 457-458 Smith], Appellant [for Indeed, Garvin].) strategy the main of the [for complainant that the was not a credi- defense was show defend may permissibly ble witness. The Commonwealth bring- on the of its against credibility attacks witnesses to the attention factors from ing jury’s jury may which inferences to those the defense. sought by draw adverse time her prosecuting attorney At no did announce that the had truth or personal telling belief victim been appellants that the had lied.16 She raised for the merely jury’s painful complainant’s consideration the nature of the testimony and allowed them to reach their own conclusion not, of testimony as to whether the nature did or did at least in tend to of her part, corroborate truthfulness statements on the stand.

Next, Appellant Smith asserts that the Assistant Attorney District erred when she summarized the victim’s testimony follows: “I I complainant you:] happened. told know what

[The every know each and one of them forced sex on me.” (N.T. 471.) 9/17/80 at

This was a fair condensation of the complainant’s testimo- ny- I [Complainant] being

A. Dave on remember Garvin top me.

Q. District Attorney] body While he had his [Assistant what, if top you, happened?

on anything, put Then, A. He his he penis my vagina. somehow I got sequence don’t know which it off—and or Bradley got top was—Jim next____ Tom Smith on of me Thus, Pfaff, 477 16. cases such as Commonwealth v. Pa. (1978) Barren, Pa.Super. and Commonwealth v. (1979) inapposite. A.2d 1156 are

Q. ... said that Tom Smith and Bradley James [Y]ou on top you?

were

A. Yes.

Q. you please Would tell Honor His and the members of if what,

the jury anything, they they did while were top on of you? sequence,

A. I in which don’t know stuck they but both penis vagina. their in my [sic] Q. doing during What were you that time?

A. to Trying fight away.

(N.T. 3.18, 3.20.) at 9/8/80 The complainant part never altered this crucial of her testimony although thoroughly it was tested on cross-exam testimony ination. This supports prosecutor’s charac terization; it prosecutorial therefore was not misconduct. Parente, supra; Commonwealth v.

Ferguson, 184, 188, 270 Pa.Super. (1979).

Additionally, Appellant Smith claims that the prosecuting attorney herself improperly during closing conducted her argument in that she was In screaming at the jury.17 claim, response to this the trial judge stated in chambers that:

The prosecutorial Court found there was no misconduct. I don’t think the Attorney talking District was in an extra loud tone of voice. did a tendency She have [sic] her up particular modulate voice and At that down. time I don’t think there was anything unusual about the way she talking jury____ was Miss Fleishman gets during closing emotional arguments but her we don’t find that tone voice anymore was [sic] inflammatory any than of the speakers other that ad- dressed the jury.

(N.T. 492, 497.) 9/17/80 at brief, Appellant 17. Counsel for Smith states in his at 36: agreed Attorney The got trial court that the District emotional during closing argument. her not overrule us, and will we cannot the record before On on this issue. the trial court finding of the Assistant alleges Appellant Smith Finally,18 tell propriety by exceeded the bounds Attorney District defense, fooled the smokescreen “Don’t be ing jury, hallucination de defense —[objections by counsel] —this fense____ fooled. Don’t be at all the evidence. Look 477.) To (N.T. at 9/17/80 [Objections counsel.]” cites Smith argument, support Gilman, 470 Pa. 179, 368 v. Commonwealth cases: five Collins, 462 Pa. v. Commonwealth (1977); A.2d 253 Harvell, 458 Pa. v. Commonwealth (1975); A.2d 492 Hamilton, v. Commonwealth (1974); 406, 327 A.2d 27 Commonwealth (1980); 350, 418 A.2d Pa.Super. However, Long, we 312, 392 A.2d 810 Pa.Super. presently from that before distinguishable find those cases of those each prosecutor the errors of the us because here. alleged than that egregious cases far more were Gilman, the defend- had stated that prosecutor In voluntary man- admission that he had committed ant’s issue”; that to the slaughter only attempt was an “becloud so, hoped that he to do but it was “smart” and “shrewd” by such trial people that are not deceived “you jury] [the the defend- Furthermore, the attacked prosecutor tactics.” calculating ... sly, as ... ... personally “cunning ant killer.” He also attacked deceiving ... a cold-blooded [and] lengthy and made a strategy the defense as “incredible” 184-185, 470 Pa. at directed to the emotions. plea jury’s A.2d at 255-256. argues Appellant the Assistant District Counsel for Smith also that 18. (1) Attorney "petitioner’s defense was that erred when she stated that (2) prosecutor injuries”; complainant] her "the had hallucinated [the evidence”; (3) and "the three misstated the defendant’s character ... ____’’ (3) objections raped no Because defendants had [the victim] Smith, appellant by to these statements at trial counsel were made Clair, Pa. waived. Commonwealth v. these claims have been Furthermore, presented never Smith 326 A.2d 272 trial; prosecutor any at the could not therefore character evidence that, Finally, preserved we note had the claim'been misstate same. statement, respect the claim would have no merit. with to the final accompanying See text n. 21 ff. Collins, In Pennsylvania Supreme the also a Court cited great many prosecutorial improprieties. 462 Pa. at 499- Among 341 A.2d at 493-494. them was a reference to a “smoke screen” erected defense who counsel were Id., “to mud in attempting eyes throw the of the jurors.” at 462 Pa. A.2d at 494. Harvell,

In prosecutor’s the improprieties included a plea the that the members of not There jury “be fooled.” a long harangue appealing followed the jury’s passions to prejudices regarding the fear of crime in the communi- prosecutor The ty. stated that the members of the jury wished, them, could free the defendant if they but warned might one be of It of you might next time. be one “[I]t you.” He persons also stated that the did like defendant not “need to the The prosecutor provid- walk streets.” also ed the jury long with discussion of the what victim would have said had the victim been able at testify. to 458 Pa. 408-409, 327 A.2d at 29. Hamilton,

In presented this court was a similar with witness”-type “best incidentally summation which includ- ed a reference fooling the defendant or jury “pullfing] the your jury’s] eyes.” wool over 274 Pa.Su- [the per. 352-353, at 418 A.2d at 29-30.

In Long, this court disparaging condemned remarks aby prosecutor permit which included an not exhortation defendant to “sneak out this courtroom under the cover prosecutor smoke.” The in that case also referred to defense a “not machine” guilty informing while prosecution jury was to search for required “the truth.” prosecutor Additionally, expressed his personal opinion of impeachment doubt as to an whether had witness told the on truth while the stand and he played on the jury’s rising fear the crime in city. rate their 258 318, at 392 Pa.Super. A.2d at 813.

The case us before is entirely different. As we have length, discussed at some the Assistant District Attor in ney this case committed no resulting error to prejudice

195 Furthermore, much of the defense appellants. of the any mem- complainant’s the case around theory this revolved summations, emphasized In their defense loss. ory by ingested alcohol pills and the effect of the the combined the length some that arguéd at attorney Each the victim. memory lapses had that she had admitted complainant that, to 6, 1980, according and concerning March and trial, complainant at testimony produced expert medical and “illusions” “hallucinations” suffered from could have (See, N.T. e.g., and drugs of the alcohol. as a result Garvin].) Ad- 404-407 for 9/17/80 at [summation Attorney’s District ditionally, the tenor of the Assistant the encouraged jury she leaves no doubt that closing entire presented during the case on all of evidence to decide the that: long the trial. She stated you I to testimony want presented.

There a lot of was case____ this It is you I to think about hesitate. want raped her or whether they really your decision whether every Each and one of rape____ she hallucinated that think of the facts and about to listen to all you has [sic] them____ all of 468, 469.)

(N.T. at 4/17/80 the jury they told members of repeatedly the She resolve themselves on required questions be would (See, testimony e.g., the had heard. id. they of all basis Basile, 471, 474, 475, 477.) In at Commonwealth (1983), panel A.2d this Pa.Super. has adopted that “no se rule been with per court observed improper (Original remarks.” em respect alleged to such case, In remarks agree. them phasis.) We “[t]he as inflame not of a character were such selves capable nor they of the were passion prejudices jury, Id., misleading distracting jury.” or 312 Pa. seriously emphasis). A.2d Superior (original at at Ct. Furthermore, with coupled because these remarks were of the defense as an apt characterization “hallucination reminder to logically defense” as well with constant 196 them,

evaluate the before find error in this evidence we no case.

The was the to this prosecutor merely telling jury avoid “smokescreen” and and testimony logically, evaluate the not to let the defense their from counsel divert attention the real issue.19 Middleton, 17, 23, 409 Pa.Super. (1979).

A.2d None of Appellant allegations prosecutorial Smith’s of mis- conduct has merit.20

Appellant Garvin likewise makes numerous to challenges prosecutor’s the conduct of during her summation. Many Collins, Appellant attempts distinguish 19. Smith to Middleton from Gilman, (1) Long only and Hamilton because "it is [Middleton ] (2) panel opinion”; Supreme Collins and Gilman are Court decisions overruled; (3) Middleton; which have not been Hamilton came after (4) judges participated Long. and this five of court in As in discussed text, factually we believe all of these other cases are distin- guishable. The fact that Hamilton came after is Middleton irrelevant. Furthermore, judges Superior the fact that five of the Court decided Long only judges participated but that three in Middleton is no consequence. began three-judge panels This court hear cases in in Furthermore, judges the late-Summer of 1978. because three of this presently quorum, they may by majority court constitute a action opinions prece- decide cases and then issue which are entitled to full Roach, weight dential and effect. See Commonwealth v. 307 Pa.Su- 506, 512-515, per. (1982). Long argued 453 A.2d 1004-1006 was Therefore, panels began judges. before this court to sit in of three judges sitting gives Long number of that decision added no authori- ty. argument, 20. In a similar Garvin cites us to Commonwealth Raffensberger, Pa.Super. 435 A.2d 864 The remark was, counsel, believe, there condemned trying defense I is “[T]he Id., Pa.Superior jury" make a out atCt. 435 A.2d fool (original emphasis). at 870 This court condemned that remark as deflecting inquiry guilt proven beyond from whether was a rea- jury appearing sonable doubt to whether or not the was in a foolish Furthermore, light. this remark occurred in a summation in which prosecutor blatantly strategy, repeatedly attacked defense ex- pressed personal opinion his and constituted a "continual stream Id., 204-205, personal Pa.Superior anecdotes." Ct. at at us, however, 869. In the case before the summation taken as a whole appeal and with the contested remark in context constitutes an to the jury logic intelligence assessing to use its collective and all of evidence. against and resolved discussed errors were alleged these separately. not discussed will be Appellant Smith already not alleged error Rather, only the we discuss will considered.21 Dis that the Assistant complains Garvin

Appellant he that was opinion her asserted Attorney improperly trict that, raped “Three men twice she stated guilty [the when 468.) consider (N.T. While we 9/17/80 at complainant].” unsaid, the summa reading left this remark was better that such a that it we do not conclude was tion as a whole minds forming in their “prejudice jury, the nature as to defendants], so that toward the hostility fixed bias and true ver and render a not the evidence they weigh could The remark supra. Youngkin, dict.” Commonwealth following context: place took within the was on I in this case. want to hesitate you [The victim] a lot of quarter. a There was for a and day that stand you I want I to hesitate. presented. you want testimony your You to live own to think this case. have with about You to decide gentlemen. have consciences ladies and [Objection of raped Three men this case. victim]. [the March 5th. Three on raped men victim] counsel.] [the raped really [Objection.] they It is decision whether your You have to rape. her she hallucinated that or whether decide.

(N.T. 468.) at 9/17/80 words, testimony that the insertion of the “There was While purified have objectionable ...” before the sentence would that prepared say it are not to the absence entirely, we trial. The context requires those four words new it that the statement was made makes clear which the to draw only urging jury was not prosecuting attorney to conclusions, she also it clear making its own but was case in of the light it had to decide the jury duty her expressions. evidence and not in accordance with earlier, raised As counsel for Garvin has other 21. we noted 14, supra. assignments they error have been waived. See n. but attorney district must have reasonable latitude in “[A] fairly presenting jury a case and that he or she to present must be free his or her arguments logical with vigor____ force and attorney’s district remarks [T]he must be evaluated the context in which they occur. Smith, 380, 387-388, Pa. Commonwealth v. (1980) (original omitted.) emphasis, citation Furthermore, upheld language we have far more caustic and emotional than that in the case at bar. Common Parente, Pa.Super. wealth v. at 553; 440 A.2d at Middleton, 269 Pa.Super. at A.2d at 44. we note Finally, that the trial judge issued curative prosecutor’s instructions after immediately (N.T. 499) summation 9/17/80 at again day the next the jury’s (N.T. role as the finder of facts. 9/18/80 at 3-22 passim.) circumstances, Under these find no we re versible error.

The alleged remarks by Appellant Bradley to have consti- tuted error all have been considered in connection with the arguments Appellant Appellant Smith and Garvin. Those assignments of error were rejected lacking as Thus, Appellant merit. Bradley’s claim that his trial coun- sel was failing ineffective for object to some of these same rejected remarks must be as well. Counsel cannot be found ineffective for failure to raise a meritless claim. Hubbard, 278, 472 Pa. at 372 A.2d at 696.

Ill: Trial Counsel: Jury Selection Ineffectiveness of The major second presented issue for our review comes to inus three different forms. for Counsel both Appellant Bradley and Appellant Smith claim that trial “counsel was by requesting ineffective not additional peremptory chal- lenges to or prior during jury selection.”22 Counsel for Appellant Garvin attacks trial counsel’s effectiveness on the grounds that she failed request “and use” additional peremptory challenges. this general While claim is the Appellant Bradley Appellant phrases 22. Brief for at 19. Smith slightly change issue in a different but manner without a in substance.

199 claim underlying the theories appellant, for each same is procedural in each as different case slightly are therefore, treat each must, We of each claim. posture separately. claim Bradley

A. Appellant ineffective counsel’s Bradley argues that Appellant most recent from of the his unawareness ness stemmed into effect on went to Pa.R.Crim.P. 1126 which amendments result, a 1980, month trial. As 1, one before August a given that the defense was to be defense counsel believed to be peremptory challenges which were total of seven only Appellant Bradley all among three defendants. divided 1126, trial, at the time of that Rule it stood now asserts chal appellant peremptory a total of seven permitted each or in Bradley raised at trial lenges. Although not motions, claim is not Present post-trial waived. this case responsibility assumed over Bradley

for Commonwealth perfected. only appeal after this had been Hubbard, 472 Pa. at 276-277 nn. 6 and 7, v. A.2d at 695 evidentiary has been no nn. 6 and 7. We note that there hearing Bradley on this issue in trial court. Cf. Davis, v. Commonwealth Pa. Stitzel, v. Commonwealth

(1982); Pa.Super. However, can determine that A.2d 1072 because we merit, will remand for claim is we not appellant’s without Hubbard, supra, Commonwealth hearing. such Pa. at 372 A.2d at 696. Rule agree appellant’s reading not 1126.

We do with amended, that, only is one Rule, The states where there as (such involving non-capital felony case a defendant a each and the defendant shall be rape), “the Commonwealth (7) Rule peremptory challenges.” entitled to seven defendant, 1126(a)(2). involving In more than one trials among that num- equally shall divide them “the defendants charged challenges that the defendant peremptory ber grade of if highest offense would have received with defendant, 1126(b)(1). Each tried Rule separately.” how- ever, must be afforded “at least two chal- peremptory and, lenges” if joint the “division among defendants results in a fraction of a peremptory challenge, each defendant shall highest be entitled to the next number of such chal- Id. lenges.” case,

In this challenges division of resulted in (2V3) two one-third challenges Thus, for each appellant. under the amended Rule appellant each was entitled to the highest next whole number of such challenges, namely* three peremptory challenges. appellants The were entitled to a maximum of seven peremptory challenges each if, but only if, permitted by the trial judge. 1126(b)(2) Rule pro vides that: shall be within the discretion of the judge trial

[I]t increase the number of peremptory challenges to which each up defendant is entitled to the number of perempto- ry challenges that each defendant would have if received tried alone. is

There no automatic entitlement to seven peremptory challenges for each multiple defendant when defendants are tried for jointly non-capital felony. Furthermore, Appel- lant Bradley has failed to set forth any circumstances which warranted, would have let alone required, judge the trial grant the maximum number of peremptory challenges use during voir dire in this case. McKenna, Common- 498 Pa. (1982); 446 A.2d 1274 Pettus, wealth v. Com- 492 Pa. (1981); A.2d 1382 McFarland, monwealth v. Pa.Super. 470, 450 A.2d 1008 (1982). The pressed claim here by Appellant is Bradley therefore without merit.

B. Appellant Smith for Appellant Smith, Counsel hand, on the other attacks his own conduct at trial as constituting ineffective assist- ance of he failed to appellant’s obtain for use either the minimum number of three peremptory chal- lenges or any greater number of such challenges up to the maximum number of seven. Counsel is only attorney to during Smith this case. As represented Appellant have hearing no on this issue Appellant Bradley, evidentiary with Instead, in the trial court. requested was or held for Smith appeal to turn this into an attempts evidentiary counsel brief, In he presentation. his counsel “avers that was not prior during jury aware of rule 1126 to or selection and that if he had been he would have the maximum requested ... further states that he challenges.” number Counsel had legitimate request “no tactical reason for failure to [his] additional rather his.failure to do so was the challenges; ignorance result of his of Rule 1126.” Brief for at 33-34. (Emphasis supplied.) Smith

This court is again thus once confronted with a situation in which raises his counsel own ineffectiveness. decade, the last especially years, Over and over the last five such claims all too frequently have become an encountered appellate feature of the review of criminal cases. Over this period, more than cases such forty involving claims have presented.23 been The pattern analysis standard disposition Fox, was established Commonwealth Pa. 383 A.2d 199 The court stated: While this court will entertain a claim of ineffective assistance of counsel on appeal by attorney same who served as trial if apparent reversible error is on us, the record before we will not such a claim reject without a appointment remand for of new counsel. Id., 476 Pa. at 383 A.2d at 201.24 Thus, it is the usual course for an court appellate of this Commonwealth to remand a claim such as this to the trial court for a hearing on counsel’s alleged ineffectiveness at which the represented defendant will be an attorney not associated provided with the firm or office which the earli- number, 23. We include in that cases in which one associate in a law public firm or defender’s raises the office ineffectiveness of another member of the same firm or office. proper 24. The court also noted that it is for the Court to raise the Id., question sponte. sua 476 Pa. at 479 n. 383 A.2d at 201 n. 4. er, ineffective, allegedly Only counsel.25 five times have our courts found an appellate attorney’s alleged ineffective- apparent ness to be on the record and decided the merits of an ineffectiveness claim raised the by allegedly ineffective attorney or someone associated with him. Commonwealth v. 461, Pfaff, Commonwealth (1978); 477 Pa. 384 A.2d 1179 Tran, v. 489, Pa.Super. (1982) (filed 307 453 A.2d 993 Commonwealth v. 12/10/82); 259, Stiefel, 286 Pa.Super. McNeal, Commonwealth v. (1981); 428 A.2d 981 261 Pa.Su- 332, (1978) (three 424 per. 396 A.2d judges concurring only result, in the one judge dissenting); Commonwealth v. Weber, 249, (1978). 256 Pa.Super. 389 A.2d 1107 In almost cases, all other the matter was remanded for further pro- ceedings. when

Usually, any discussion takes place concern ing principles underlying disposition claim, of such a the courts often state that a remand is necessary because it is “unrealistic” to expect zealous advocacy from an attorney under the laboring conflict of interest inherent arguing his own or an associate’s ineffectiveness. Commonwealth Fox, v. 478-479, 476 Pa. at 383 A.2d at 200-201. Sometimes terms, in the strongest both this court and the Supreme used Court have this zealousness theme to condemn the practice and induce counsel to either such forego claims or to aside step and allow new counsel to adequately a record develop present along claim with others preserved appellate for review. Commonwealth v. Willis, 310, (1981); 492 Pa. 424 A.2d 876 Commonwealth v. Glaseo, 490, (1978); 481 Pa. 393 11 A.2d Commonwealth v. Gardner, 7, (1978); 480 Pa. 389 A.2d 58 v. Commonwealth Patrick, 284, (1978); 477 Pa. 383 A.2d 935 Commonwealth v. Wright, 395, 473 Pa. (1977); 374 A.2d 1272 Common Via, wealth v. 373, 455 Pa. (1974); 316 A.2d 895 Common Massie, wealth v. 115, 294 Pa.Super. (1982); 439 A.2d 777 25. The better course is for counsel permit to remove himself and develop different counsel a record on the ineffectiveness issue before jurisdiction the case is removed from the trial court’s virtue filing appeal. Beecher, of the of a notice of See Commonwealth v. 278 309, (1980). Pa.Super. 420 A.2d 555

203 Nance, Commonwealth 312, 290 Pa.Super. 434 A.2d 769 Beecher, Commonwealth v. (1981); 309, Pa.Super. 420 Lewis, Commonwealth v. (1980); A.2d 555 278 Pa.Super. Prowell, Commonwealth v. (1980); 419 A.2d 1342 Commonwealth v. (1977); Pa.Super. Crowther, 241 Pa.Super. 361 A.2d 861 Occa sionally, this court has forcefully criticized counsel raising such claims. For example, Smoyer, 320, 323, Pa.Super. (1980), A.2d the Court stated:

We do not condone practice of counsel public from the raising defender’s office the effective assistance of coun- sel where trial counsel is a different attorney from the same public defender’s office. If genuine issue of the exists, effectiveness of trial counsel then public the de- fender request should the trial court to appoint appellate is who not a of public member defender’s allegation office. The of ineffective assistance of counsel is tantamount to an allegation of incompetency on the counsel____ part of The best interest of an appellant is not served where his counsel must establish that an associate from his office acted in an incompetent manner at trial.

It is now beyond dispute that the duties and obligations imposed in upon counsel a criminal case are the same regardless of whether counsel retained, is privately appoint- ed by the court or a member of public defender’s or Sullivan, Cuyler v. legal aid office. 335, 446 344-345, U.S. 1708, 1716, 100 S.Ct. Ferri v. Acker- 64 (1980); L.Ed.2d 333 man, 193, 444 199-205, 402, U.S. 100 407-410, S.Ct. 62 Reese (1979); v. L.Ed.2d 355 Danforth, 479, 486 Pa. 406 Felix, Barto v. (1979); A.2d 735 262, 250 Pa.Super. 378 A.2d (1977); 927 ABA Standards (2d for Criminal Ed.), Justice Relating Standards to the Function, Defense Standard 4-3.- 9; Burger, Counsel the Prosecution and Defense— Their Standards, Roles Under the Minimum 8 Am.Crim. 2, L.Q. (1969). 6 The placed burden upon the shoulders of Smoyer, supra, must be public defender in Court

204 retained by privately court-appointed as well borne It is obvious that counsel has manifestly present counsel. not done so. of this call upon

The circumstances case also us to of upon representation. comment another facet counsel’s brief, his quoted portions As is from the of coun apparent us matters attempting place sel is before factual outside in an in attempt the record to obtain a his client’s ruling is it function court only favor. Not not the of this to make findings, factual but counsel is to act as attempting both in same attorney practice witness and case. has Such long been condemned both civil and criminal cases. 537, (1981); v. 494 Pa. Floyd, Commonwealth 431 A.2d 984 Fontana, 7, (1980); 490 Pa. A.2d 4 415 City Philadelphia, American Co. v. 480 Pa. Dredging 177, Hertz, (1978); 105, A.2d 568 Kraynick 389 v. 443 Pa. (1971); 144 Scoleri, 277 A.2d Commonwealth 415 Pa. v. 218, (1964); Will, 205, 202 A.2d 521 Otto 349 Pa. Dicken, (1944); Perry Am.Rep. Pa. Ethics, Both the Canons of Canon and the Code Responsibility, Professional Rules 5-101 and Disciplinary 5-102, proscribe such specifically conduct. discuss merely

We these matters not to add to the growing examples problems chronicle of current inef doctrine, see, fective assistance e.g., Commonwealth v. Alexander, 495 Pa. (1981); 432 A.2d 182 Common Watlington, (1980); wealth v. 491 Pa. A.2d see Brown, also 313 Pa.Super. (1983) banc) (en

A.2d (concurring opinion of J.); Spaeth, but to that emphasize claims wherein counsel his challenges own are effectiveness not favored and should not be asserted. The professional improprieties proce and above, dural wastefulness again described repeated and again the words despite strongest of disapproval by voiced Court, Supreme this and the are subjects the proper of ameliorative efforts. case, purposes

For the of this we that conclude several compel factors us to our recognition withhold of the claim First, counsel raise pressed Smith. failed to this by now part the trial This failure on his question before court. the for him trial place despite example took set counsel post-trial who this issue in her for Garvin raised in stepped post-trial motions and then order to aside allow appellate and counsel to this and other properly advance preserved claims. Smith’s counsel attended an evidentiary hearing at which Garvin’s trial counsel was called to testify concerning very point. Despite this this having claim manner, drawn to his in potent attention this counsel stated Second, one behalf not word on of his own client. counsel failed, despite also the set for him example by Bradley’s counsel, step trial to independent aside and allow new and to prosecute this In such appeal. posture, a we could have in stayed proceedings pending this court an evidentiary hearing. We also not would be confronted with the unenviable position being required assess to trustworthiness of one in who comes before us the twin Third, roles interested witness and' advocate. as noted above, delay counsel’s has him permitted bring to before court this averments of fact outside the record to which respond Commonwealth cannot which properly we properly cannot evaluate. regard Counsel’s failure in this carries with it strong disregard orderly for the adminis- of justice by asking tration us to assume role of fact-finder same at the time we are afford unable the Commonwealth an in opportunity to be heard rebuttal. Fourth, counsel challenge does not his ineffective failure bring this error alleged post-trial before trial court failure, motions. By attempts he to avoid the kind of placed burden that would be upon independent successor counsel who allege must the ineffectiveness preced- of each ing counsel.

Fifth, an examination of the cases which counsel raised his own or an associate’s ineffectiveness on appeal direct where case was remanded an hearing on evidentiary alleged counsel’s ineffectiveness shows that in most cases counsel either raised his own in the ineffectiveness trial

206 Commonwealth v. motions, post-trial

court means of Patrick, Commonwealth 284, (1978); 477 A.2d Pa. 383 935 Cooke, v. Common- 205, Pa.Super. (1981); 288 431 360 A.2d Smoyer, supra; wealth v. Commonwealth v. McCarty, 280 Commonwealth v. 102, (1980); Pa.Super. 421 A.2d 425 Jellots, Common- 358, (1980); Pa.Super. 277 419 A.2d 1184 v. Aye, wealth Pa.Super. 369, (1980); 275 418 A.2d 767 Hart, Commonwealth v. 189, Pa.Super. 272 414 1071 A.2d (1979); preserve or as ineffective his failure attacked Quarles, Commonwealth v. issue, Pa.Super. 473, 284 426 Stump, Commonwealth v. (1981); A.2d 145 281 Pa.Super. Jackson, Commonwealth 317, v. (1980); 187 280 v. 522, (1980); Commonwealth Pa.Super. 421 A.2d 845 Vigue, Common- 46, 279 Pa.Super. (1980); 420 736 A.2d Beecher, wealth v. 309, (1980); 278 Pa.Super. 420 A.2d 555 Williams, Commonwealth v. 86, Pa.Super. 277 A.2d 419 Harrison, (1980); Commonwealth 673 Pa.Super. 275 Lennox, 249, Commonwealth v. (1980); 418 A.2d 706 270 254, Pa.Super. (1979).26 411 A.2d 514 We also note that court expressly has ruled that: ineffectiveness, must raise his own if he is to

[C]ounsel all, raise it at at the first available time. In the instant case, counsel would have had to raise that claim post-trial Failing that, motions. counsel could have con- tended before this Court had he been ineffective to file failing proper post-trial requested motions and motions nunc pro tunc. right post-verdict file Be- 26. are There cases in which it is not clear whether the claim on raised appeal court, post-trial was raised in the motions submitted to the trial Towns, 436, Pa.Super. (1981); Commonwealth v. 290 434 A.2d 831 312, Nance, Pa.Super. (1981); Commonwealth v. 290 434 A.2d 769 Butler, 496, Pa.Super. (1980); Commonwealth v. 279 421 A.2d 308 Viall, 613, Pa.Super. (1980); Commonwealth v. 420 A.2d 710 Frazier, Pa.Super. (1980); Commonwealth v. 420 A.2d 523 Boyer, Pa.Super. (1980); Commonwealth v. 419 A.2d 671 at least one case in which it not is clear whether counsel attacked his issue, failing post-trial containing ineffectiveness in to file motions Gardner, (1978). Pa. 389 A.2d 58 There is appeal also one direct where the case was remanded after the client only appeal raised his counsel's ineffectiveness on but pro in a se Folino, Pa.Super. brief. Commonwealth v. 439 A.2d 145 cause counsel did not raise the claim properly, we hold that issue is waived. Matt,

Commonwealth v. 98, 106-107, 249 Pa.Super. 777, (1977) (Hoffman, J., A.2d 780-781 with three judges result) (footnotes three joining, judges concurring omitted). and citations Tran, viable. Commonwealth v.

This case continues to be 489, 494, 993, 307 Pa.Super. (1982). 453 A.2d Finally, by but no means least in importance, we observe that Appellant Smith is not foreclosed from having this claim heard on collateral attack pursuant to the Post (PCHA).27 Conviction Hearing Act alleged Counsel who is to be ineffective cannot foreclose his client from obtaining a hearing on the ineffectiveness issue. Commonwealth v. Dancer, 95, 100, 435, 460 Pa. (1975). 331 A.2d Such a claim may fully be waived only by the failure of new and independent counsel the issue. Com to litigate raise and Hubbard, monwealth v. 7, 472 Pa. at 277 n. 372 A.2d at 699 Matt, See also Commonwealth v. supra; (1977). n. 7 Drake, 541, 6, 489 Pa. 545-547 and n. 1023, 1025-1026 and n. 6 We also observe there is no greater impediment to prompt schedul ing of PCHA proceedings than there is to the scheduling proceedings on remand. In nearly all material respects, these proceedings would be the same: new counsel would obtained, need to be the time investigating and preparing for the hearings same, would be the and all parties would still be able to obtain appellate review.

For all of reasons, therefore, the foregoing we neither reach the merits of the issue nor remand for an Act, 25, 1966, Hearing 27. Post January Conviction Act of P.L. 1580 (1965), 28, seq., 1 et seq., repealed, April § 19 P.S. et § 1180-1 Act of 1978, 202, 53, 2(2) (1397) 27, 1980, P.L. No. § effective June as 26, 1980, 265, 77, by amended Act of June delaying repeal P.L. No. 2§ 27, 1981, 26, 1981, until June amended the Act of June further 26, 1982, delaying P.L. repeal No. repealed by § until June 13, 1982, 1982-122, May Act of P.L. replaced by No. § seq. Pa.C.S. 9541 et § evidentiary hearing; purposes appeal only, for the of this the issue is deemed to been have waived.28

C. Appellant Garvin Similarly, Appellant argues Garvin also that his trial ask failing counsel was ineffective “to for and use challenges number which peremptory appellant to was entitled under Pa.R.Crim.P. 1126.” Brief [sic] instance, In Appellant Garvin at 16. is issue motions, properly presented. In trial post-trial counsel raised her own ineffectiveness and then stepped she aside present to allow replace her. Before an appeal during motions, was filed and pendency of the post-trial a hearing was held all by attended the defendants and their representative counsel as well as a of the District Attor ney’s Office. Garvin’s trial counsel testified at on the hearing alleged issue of her ineffectiveness. We proceed will therefore to consider the on the issue merits. issue, In this ruling on the trial court stated: was not ineffective for to ask failing for addi- [C]ounsel tional peremptory challenges. The defendants were al- lowed a total nine and only seating seven were used in The jury. fact that counsel was unaware of Rule 1126 they were entitled to more peremptory than challenges they actually used not does make counsel ---- ineffective Counsel has no prejudice shown being result of with unfamiliar rule. new 31-82.) at (Tr.Ct.Op.

We agree with the trial court’s ultimate conclusion of the However, ineffectiveness issue. premise we our affirmance on slightly ground.29 different

The by standard which we assess claims of ineffective assistance of counsel is repeated: familiar and often impediment appellant collaterally 28. There is attacking no his ground. conviction this on course, may, any ground 29. We affirm the trial if court for Dancer, 95, 5, affirmance exists. v. Commonwealth Pa. 101 460 n. 331 435, (1975). A.2d n. 5 resolving In guided contention we are the stan- dard set forth in Commonwealth ex rel. v. Washington 599, 604, (1967): 427 Pa. Maroney, assistance is deemed effec- constitutionally [C]ounsel’s tive once we are able to conclude particular that the course chosen by counsel had some reasonable basis designed to effectuate client’s interests.

The initial factor which must be considered in applying this reasonable basis standard is whether the claim which ... counsel is charged with not pursuing had some rea sonable basis. In we noted Maroney, finding that “a ineffectiveness could never be made unless we concluded that the alternatives not chosen potential afforded a for success substantially greater than the actually tactics utilized.” Commonwealth ex rel. Washington v. Maro ney, 427 Pa. at 605 n. 235 A.2d at 8] ____ It is [n. only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis ... counsel’s decision not to pursue Thus, the matter. starting point of our inquiry is whether there were rea grounds sonable to advance the ... claims which were advanced____ not Hubbard,

Commonwealth 277-278, Pa. A.2d 695-696 (Original emphasis.)

We believe that the trial court correctly required Appellant Garvin to show that some prejudice30 to his defense occurred because of counsel’s alleged shortcom However, ings. we hasten to add that this showing is accomplished by establishing that the foregone claim is of arguable merit. An examination of the of other law juris dictions, both State,32 Federal31 and reveals that a showing 30. The argue Commonwealth continues to in this court that there was prejudice appellants’ no defense. Brief for the Commonwealth at 10. question 31. The showing of the need prejudice for a of within the has, context of an past, ineffectiveness claim in the recent received a great courts, deal of attention in achieving the Federal somewhat varied results. The United Appeals States Court of for the First requires Circuit that the accused establishing bear the burden of 210 The of this courts always required. is almost prejudice

of a different verbal formula adhered to have Commonwealth requirement This jurisdiction. other any used than that alleged fail of counsel’s prejudice” to his defense reason "actual 1006, Cir.1982); (1st Campa, 1014 679 F.2d United States v. ures. denied, 1179, (1st Cir.1978), Ritch, cert. 1183 v. 583 F.2d United States 463, 970, Circuit is in L.Ed.2d 430. The Second S.Ct. 58 U.S. 99 439 182, Aulet, (2nd Cir.1980); F.2d 188 v. 618 United States accord. 84, Corrections, (2nd Commissioner, 560 F.2d 92 Dept. v. LiPuma 861, 189, denied, Cir.1977), L.Ed.2d 135. The U.S. 98 S.Ct. 54 cert. 434 inquiry prejudice is an long recognized that an into Circuit has Third v. analysis, States ex rel. Green United of ineffective counsel element 1112, (3d Cir.1970), Rundle, of that but the exact nature F.2d 1115 434 Baynes, Compare: States v. 687 United inquiry remains uncertain. 659, (3d Cir.1982) analysis) (utilizing error” "harmless F.2d 669-673 (no 365, (3d Cir.1981) Laura, F.2d 370-371 v. 667 with United States any prejudice representation nor other impact defendant's adverse on defense). to her consider the apparently had little occasion to Circuit has The Fourth recognized test past a harmless error in the question, but has Peyton, v. 389 F.2d conjunction claims. Coles with ineffectiveness 80, 849, denied, 224, Cir.1968), (4th S.Ct. 21 393 U.S. 89 cert. 226 on the new Eleventh Circuits draw The Fifth and the L.Ed.2d 120. requirements prejudice be similar that and thus have case law same Strickland, (5th Cir.1982), modi Washington 673 F.2d 879 v. shown. Cir.1982) (en banc), banc, (5th cert. rehearing en 693 F.2d 1243 on fied — 2451, (1983); U.S. —, v. 77 L.Ed.2d 1332 Adams granted, 103 S.Ct. Lucas, 734, (11th Cir.1982); Balkcom, Gray v. 677 688 F.2d 738-739 Watkins, Cir.1982); 1086, (5th Washington v. 655 F.2d 1092-1093 F.2d 949, denied, Cir.1981), 1346, (5th U.S. cert. 456 and n. 32 1362-1363 2021, (1982). time The Sixth Circuit at one 72 L.Ed.2d 474 102 S.Ct. analysis, but has since rejected any of even a harmless error use prejudice in the as well as on the use waivered on that issue States, Compare: Beasley United 491 F.2d v. context. ineffectiveness 684, Sumlin, 687, Cir.1974); (6th v. 567 F.2d with United States 696 1507, 932, denied, Cir.1977), (6th S.Ct. 55 435 U.S. 98 cert. 688-689 Circuit, too, rejected the use of has The Seventh L.Ed.2d 529 analysis yet required the defendant make has that error harmless showing prejudice to his defense due to counsel’s plausible some Cannon, Healey 553 Compare: States ex rel. United derelictions. 874, denied, 1052, Cir.1977), (7th 434 U.S. 98 S.Ct. 7 cert. F.2d 1057 n. 649, Berkwitt, 153, 221, F.2d 659 States v. 619 L.Ed.2d with United 54 259, (7th Cir.1980); (7th Cooper, F.2d 263 n. 8 States v. 580 United 1245, States, (7th Cir.1978); Cir. F.2d v. United Matthews (7th Cir.1973), 1975); Ingram, 477 F.2d and United States v. denied, L.Ed.2d 76. S.Ct. cert. 414 U.S. preju- consistently required Eighth have and Ninth Circuits The prima facie case of case be shown before to the defendant's dice Eighth Walker v. is made out. Circuit: ineffectiveness constitutional (8th Cir.1982); Solem, States v. n. 3 United F.2d 1236-1237 Parratt, 1217, Cir.1982); (8th Nevels v. 596 F.2d Kelly, 687 F.2d 1219

211 developed out of the seminal case of Commonwealth ex rel. Washington Maroney, v. 8, 427 Pa. at 605 n. 235 A.2d at Commonwealth 8,n. quoted only part 353 the court in by Hubbard, v. supra. Washington full, In court stated: 344, (8th Cir.1979), denied, 859, 122, 346-347 cert. 444 U.S. 100 S.Ct. McQueen 79; Swenson, 207, (8th 62 L.Ed.2d v. 498 F.2d 218-220 1974); 1070, Sanford, Cir. Ninth Circuit: United States v. 673 F.2d 1073 (9th Cir.1982); Altamirano, 147, (9th United States v. 633 F.2d 152-153 Cir.1980); Winston, 221, (9th Cir.1980); United States v. Fitzharris, 613 F.2d 223 1325, (9th Cooper Cir.1978) (en v. 586 F.2d 1331-1333 banc), denied, 974, 1542, (1979). cert. 440 U.S. 99 S.Ct. 59 L.Ed.2d 793 Circuit, Circuits, The Tenth like the Sixth and Seventh once disavowed analysis, use of even a harmless error but has since come full requires circle showing prejudice and now that some of be made. 122, Compare: Porterfield, (10th United States v. 624 F.2d 125 Cir. 1980), Golub, 207, (10th with United States v. 694 F.2d 214-216 Cir.1982). Finally, the District of consistently Columbia Circuit has analysis by Judge followed the set forth opinion Leventhal in the lead Decoster, (D.C.Cir. 1979) (en in United banc), States v. 624 F.2d 196 denied, 944, 302, 311, cert. 444 U.S. 100 requiring S.Ct. 62 L.Ed.2d a showing that counsel incompetency” committed a “serious as a result of "probably which the outcome of the trial was affected” and there is Government, showing, by no on rebuttal that no actual harm Green, 183, (D.C.Cir. occurred. United States v. 680 F.2d 188-189 1982) curiam); (per Patterson, 1046, United States v. 652 F.2d 1048 (D.C.Cir. 1981); Hinton, 769, (D.C. United States v. 631 F.2d 782-783

Cir.1980); Wood, 554, (D.C.Cir. 1980) and United v. States 628 F.2d 559 (en ) ). (per banc curiam great majority 32. The of our require showing sister States also that a prejudice of of some may sort be made before a convicted defendant grounds. obtain a new trial on ineffectiveness See: Annotation-Mod- em Status Rules and Adequacy Standards in State Courts as to Client, 27, Representation Counsel’s Criminal 2 A.L.R. 4th Defense extreme, vary, 83-99 The standards however. At one some require showing courts deprived that counsel’s failure the accused of a material or substantial attorney’s inadequate defense or that the performance actually See, affected e.g., the outcome of the case. 412, 732, People Pope, 859, Cal.Rptr. v. 23 Cal.3d 590 P.2d 2 A.L.R. (1979); 89, Saferian, 4th 1 366 Mass. 315 N.E.2d (1974); Murch, 914, Lang (Me.1981); v. 438 A.2d Wesley States, (D.C.App.1982). United 449 A.2d require Other states only conviction,” incompetence that counsel’s be shown to have "contributed to the Stoughton, Siemon v. 184 Conn. (1981), part-way or some other similar standard an between outcome- State, analysis. determinative test and harmless error Delahunt v. (R.I.1982) (had A.2d 135-136 steps sought counsel taken defendant, they anything "would not have added of substance to the defense”). apply only Still analysis. others a harmless error

Cases such as Commonwealth ex rel. Gallagher v. Run- dle, 356, 423 Pa. (1966) 223 A.2d 736 and Commonwealth ex rel. Jones v. Maroney, 567, 417 Pa. (1965) indicate that for relief to granted, be appellant must demonstrate that counsel’s ineffectiveness worked to his prejudice. however, Appellant, advances proposition that any requirement of prejudice is inconsistent with Maryland, 59, White v. 373 U.S. 83 S.Ct. 1050 L.Ed.2d [10 (1963) and Alabama, Hamilton 52, 368 U.S. 193] S.Ct. 157 L.Ed.2d two cases [7 held 114] [These that no prejudice need be shown when counsel is not made indigent available to an defendant at a critical stage of pre-trial proceedings.] Since our test requires that we examine the approach employed by counsel in light of the alternatives, available a finding ineffectiveness could never be made unless the alternatives not chosen of- potential a success substantially greater than fered for actually then, tactics utilized. if Obviously, there is no support reasonable basis to ... (a counsel’s decisions finding prerequisite to a conclusion of ineffectiveness), his decisions a were prejudicial to the client. fortiori (Emphasis supplied.)

Thus, by including emphasized language with the defini- merit,” tion of “arguable the Hubbard court implicitly acknowledged that a showing of prejudice required is for a showing of counsel’s ineffectiveness. The prejudice which a defendant must show is that the claim or foregone, tactics if pursued, would have altered the chances for a successful defense both positively and substantially. When an accused fails to or allege show this form of prejudice, our courts will conclude that his or her claim is without merit. Common- Hubbard, wealth v. supra.

An analysis of our supports cases this conclu sion. In Pettus, Commonwealth v. 492 Pa. (1981),

A.2d the Supreme Court rejected a claim of ineffectiveness saying:

Assertions of ineffectiveness in a vacuum cannot be inef- fectiveness. Counsel who is alleging ineffectiveness an must set forth offer to at an prove appropriate hearing upon sufficient facts reviewing which a court can con- fact, clude that trial have may been ineffective. no longer This Court will consider claims of ineffective assistance of counsel plate allega- abstract. Boiler insufficient____ tions ... are

Even more our recently, Supreme rejected Court has an claim based the alleged ineffectiveness on failure of trial pursue counsel to motion vigorously change venue. In Pa. Vogel, 501 461 A.2d 604 (1983), grounds the court articulated ruling. two for its First, the defendant that had case not that he shown would have been able to a change obtain of venue even if trial pursued counsel had such a Id., motion. 501 Pa. at 329, Second, 461 A.2d at 611. the court stated: accept if we as inadequate counsel’s reasons for

[E]ven failing pursue motion for change of with venue more vigor, that fact alone would not a distur- justify judgment bance of a final a showing absent further the asserted dereliction Mr. deprived Vogel of a fair trial. certainly This was not a situation that justify would a presumption prejudice.

Id., 329, 501 Pa. at 461 612. A.2d at Also, panel an en banc has rejected court recently claim that was for failing ineffective to examine the record and preserve the claim defendant’s that certain phys- ical evidence should have suppressed. been In Common- Brown, 256, wealth v. 313 (1983), 459 Pa.Super. A.2d 837 this court stated:

Nowhere does Brown tell exactly wrong us what was with the stewardship suppression and of his disposition motion or it prejudiced how him.

Id., 260, Pa.Superior 313 Ct. at 459 (original A.2d at 839 emphasis).

Likewise, in “missing cases, witness” the accused must (1) show that counsel knew of the existence of the witness called, (2) who should purportedly have been the witness was testify, (3) available to testimony of the witness

214 the defense. Com strengthened have appreciably would McKenna, 416, (1982); v. Pa. 446 A.2d 1274 monwealth 498 Robinson, 541, v. 410 744 Commonwealth 487 Pa. A.2d Stokes, 529, Commonwealth v. (1980); Pa.Super. 294 440 v. Ashley, Commonwealth (1982); Pa.Super. A.2d 591 287, (1980). 419 A.2d 775 the claimed ineffectiveness When counsel should have filed a rests on the assertion that relief, the defendant must specify motion for post-verdict Com preserved, the trial errors which should have been McFarland, 470, 473-74, monwealth v. Pa.Super. (1982), as show those omitted A.2d as well how chance “arguably important were and had a objections Hubbard, succeeding.” Commonwealth v. 472 Pa. at A.2d at 699. The same is true when the defendant file a motion to attorney’s pre-trial attacks his failure to Costanzo, suppress. Commonwealth Pa.Super. that counsel argues 455 A.2d 153 When a defendant defense, presentation of a that defense must be omitted McKen both “material and favorable.” Likewise, na, 1277. supra, 498 Pa. at 446 A.2d at alleges a defendant that his counsel failed to attack when prior of a witness means of inconsistent credibility the defendant must demonstrate the nature of testimony, Common materiality. those inconsistencies and their McFarland, v. supra. wealth Supreme Pennsylvania We are aware that Court has also ruled that a harmless error not analysis apply does to claims of ineffective assistance of counsel. Common v. 240, 244, 642, (1978). Badger, wealth 482 Pa. 393 A.2d 644 Badger The court in relied on United States specifically that the “assistance Supreme precedent Court which stated so among rights of counsel is those ‘constitutional basic to a fair trial that their infraction can never be treated as ” Arkansas, 475, Holloway v. error.’ 435 U.S. harmless 489, 1181, (1978), 1173, L.Ed.2d 426 quoting 98 S.Ct. 55 18, 23, 824, v. Chapman California, 386 U.S. 87 S.Ct. 827-828, (1967). may 17 L.Ed.2d 705 This still be true for right-to-counsel of ineffectiveness or categories certain

215 See, afforded, was cases. cases where no counsel e.g., supra; v. Gideon v. 372 Maryland, Wainwright, White 335, 792, (1963); 9 83 S.Ct. L.Ed.2d 799 Hamilton U.S. v. Alabama, a for supra; systematic where defect which the prevented was from responsible state counsel performing representation functions vital to effective such as Geders v. 80, 1330, States, 425 96 47 United U.S. S.Ct. L.Ed.2d 592 (1976) York, 853, New v. 422 95 Herring U.S. S.Ct. 2550, (1975); 45 L.Ed.2d required 593 where counsel is operate under an actual conflict of or fails to interest detect Sullivan, a 335, such conflict such as 446 Cuyler v. U.S. 1708, (1980) 100 S.Ct. 64 L.Ed.2d 333 and Glasser v. United States, 60, 457, (1942); 315 62 S.Ct. U.S. 86 L.Ed. 680 or counsel’s derelictions are pervasive where so and substan that no precise degree tial in fact prejudice can be shown Alabama, (5th as Cir.1979), such Davis v. 596 F.2d 1214 moot, as vacated 446 U.S. 100 64 S.Ct. L.Ed.2d (1980). However, where proceeds unhindered by governmental misconduct and there where are no cir cumstances from which inherent prejudice may logically be presumed, United States Court has Supreme unani mously stated that “certain the right violations of to coun may disregarded sel be harmless error.” United States Morrison, 361, 365, 665, 668, v. 449 U.S. 101 S.Ct. L.Ed.2d Additionally, the court stated that some real or threatened absent “adverse effect upon ... counsel’s representation or ... prejudice some other to the defense ... there no basis is imposing remedy that proceeding, go which can forward full recognition with the defendant’s to counsel fair right and to a trial.” Id. thus conclude Badger We and its progeny, Common Stitzel, 43, 47-8, Pa.Super. wealth (1982) Williams, and Commonwealth v. 273 Pa.Super. (1979), 416 A.2d no longer correctly reflect the law. We thus that Appellant conclude was required Garvin show prejudice to some form of to his defense before his claim of the part ineffectiveness of his trial counsel could arguable deemed to be be of merit.

After thorough record, a of the review we hold that Appellant Garvin failed to make the requisite showing. At the post-trial hearing, trial counsel for Appellant Garvin was the only (N.T. witness called testify. to 5-9.) 5/6/81 at that, She stated trial, at the time of she “thought that we were entitled to seven [peremptory challenges], a total of seven for the three defendants.” She further testified that she was unaware of the change in Pa.R.Crim.P. 1126 which increased the number peremptory challenges permitted. Counsel that, also stated had she been aware of the change, she “would have asked for a minimum of three ... and a seven____” maximum of She also stated that she had not been “satisfied” with the jury selected and that she would have exercised additional peremptory challenges if she thought them available. She explained:

At the time we conducted the voir dire we exhausted all seven challenges, so that before the jury selection was completed the three counsel and the defendants had used up the thought seven we were entitled to. We we would have used more if there were additional challenges avail- able to us.

(N.T. 9.) 5/6/81 at Contrary to the assertion of counsel and contrary statement in the trial opinion, court’s at Tr.Ct.Op. we believe that the record shows that eight peremptory chal- lenges were utilized by defense selecting the jury. By examining the dire, transcribed record of the voir we can identify the column on jury selection sheets used to record the peremptory challenges exercised by counsel for the defense. There are a total of eight per- recorded emptory strikes. Because more challenges were utilized than counsel being permitted remembered exercise, sub- stantial is cast upon doubt her ability to accurately recall the other circumstances surrounding claim.

However, even if her correct, memory be her testimony provides no basis for a claim to relief. We find this case to be similar to Stokes, supra, 294 Pa.Su per. at 440 A.2d at case, 597. In that this court found assertion that the single bald a defendant’s unpersuasive helpful have been to missing of a witness would testimony his case. prospective to single reference

Appellant’s [the witness’] that her a demonstration” hardly “positive is assistance de- helpful Appellant’s to would have been testimony for failure fense, not find counsel ineffective and we will to her. produce in the in is needed Stokes needed what

What was of the a assessment conclusory case is more than present These under- the claimed ineffectiveness. underlying facts to must elicited so as enable circumstances be lying above, As noted make its own assessment. court to the jury. had not “satisfied” with testified that she been However, the source from which this are not told we cannot, nor could the trial stemmed. We dissatisfaction the reasonableness of that dis- assess independently court] specific that any juror did not state satisfaction. Counsel fell any specific juror excused nor that would have been nor did she threshold of “satisfaction” personal her below acceptability criteria for were structured. explain her how short, that the that would have jury In there is no indication “less unfair” have been “fairer” or beén selected would heard the case. We cannot panel actually than the which counsel’s failure to exercise therefore conclude that trial challenges to which she was peremptory the additional poten- an with “a deprived appellant entitled of alternative tactics actual- substantially greater for success than the tial rel. v. Washington Commonwealth ex utilized.” ly Furthermore, such Maroney, supra. although evidence of this we note that type, not essential to a claim may be in the slightest is on this record which there no evidence the fairness of the which heard this impugns jury manner Stitzel, Pa.Super. in Commonwealth v. 33. Contrast the situation (1982), potential juror permitted where counsel 454 A.2d 1072 relatively although juror close relation- panel had a remain on the family ship the victim. We do not mean intimate that to the specific as that proof prejudice must be as substantial or as record, Stitzel, prejudice there is must be shown. On but some none. Indeed, case. the jury acquitted Appellant Garvin of two charges and acquitted Appellants Smith and Bradley three charges each. Because appellant has not carried his showing burden of that he would have benefitted some from the way exercise of the additional peremptory chal- lenge, he has failed to show that his claim arguable has any merit.

IV . [40] The presented final issue appeal on is raised on behalf of Appellant Bradley. Appellant argues that his trial counsel was failing ineffective for to call two witnesses who, purportedly, could provided have exculpatory evidence. However, appellant has failed to us of inform what the missing to, witnesses would have testified how that would have helpful been to him or that the witnesses were avail able to on his behalf. Commonwealth v. Payne, testify Pa.Super. (1982); 454 A.2d 1063 Commonwealth v. Ashley, Pa.Super. 287, 291-293, 777-778 (1980). This claim need not be remanded for the of purpose an holding evidentiary hearing for appellant has failed to which, allege claim if proved true, even would be arguable merit. Pettus, supra.

For reasons, all the foregoing the judgments of sentence are affirmed.

SPAETH, J., files a concurring and dissenting opinion. SPAETH, Judge, concurring and dissenting: I in the join majority’s opinion as to appellants Smith and Bradley. However, disagree I with the majority’s holding that appellant may Garvin not prevail on his claim that counsel was ineffective because he did not prove that coun- sel’s failure to request the minimum number of peremptory challenges to which he was entitled under Rule 1126 preju- diced him at trial. At 208.

The result of the majority’s holding is that the right to effective assistance of counsel does not apply during voir dire proceedings, for it can never proved be that if the composition of the jury different, had been the result at In counsel’s appraising different. have trial would been dire, inquire whether I should therefore during voir conduct of the selection jury in the context prejudiced was Garvin afterwards happened of what not in the context process, the trial. was acknowledges, each of appellants majority

theAs under peremptory challenges three to a minimum of entitled hearing, Gar- 1126(b)(1). post-trial At the At 200. Rule with that she was dissatisfied counsel testified vin’s trial that if she had known and that jury, of the composition of three peremptory to a minimum right had a Garvin used and would have she have asked for challenges, would I N.T. 6-8. believe challenge. additional preju- to show that Garvin was was sufficient testimony there process: selection jury in the context of diced igno- counsel’s confessed no reasonable basis for could be her to the amendments Rule but rance of improve (from Gar- sought she have ignorance, would exercis- view) composition jury by point vin’s challenge which Garvin peremptory the additional ing 1126(b)(1). entitled under Rule was against of sentence judgment I believe that the therefore him, the and as to case should be Garvin should be vacated I concur in the remanded for a new trial. Otherwise order. majority’s A.2d CARANGELO,

Mary Appellant, Patricia R. CARANGELO. William Pennsylvania. Superior Court Sept. 19, Argued 1983.

Filed Nov. 1983.

Case Details

Case Name: Commonwealth v. Smith

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 16, 1983

Citation: 467 A.2d 1307

Docket Number: 1229, 1332 and 1465

Court Abbreviation: Pa.