Commonwealth v. Ashley

419 A.2d 775, 277 Pa. Super. 287, 1980 Pa. Super. LEXIS 2489
CourtSuperior Court of Pennsylvania
DecidedMay 13, 1980
Docket11
StatusPublished
Cited by19 cases

This text of 419 A.2d 775 (Commonwealth v. Ashley) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ashley, 419 A.2d 775, 277 Pa. Super. 287, 1980 Pa. Super. LEXIS 2489 (Pa. Ct. App. 1980).

Opinions

[289]*289CERCONE, President Judge:

This is an appeal from the order of the court below dismissing appellant’s petition under the Post Conviction Hearing Act1 without holding a hearing. For the reasons set forth herein, we affirm.

The record discloses that in November of 1975 the Pennsylvania State Police were conducting surveillance on a Harrisburg residence pursuant to reports that drugs from Philadelphia were coming to that house. While so engaged Trooper James Drenning learned that a vehicle parked in front of the house had been reported stolen out of Philadelphia. When a man (later identified as appellant) and a woman came out of the house and entered the car and began to drive away, Trooper Drenning and his partner stopped the vehicle and placed appellant under arrest. A search incident to that arrest revealed that appellant had a quantity of heroin in his pocket. Appellant was then charged with possession with intent to deliver a controlled substance. Following a non — jury trial, appellant was found guilty as charged. Subsequent to the denial of his post-verdict motions, appellant was sentenced on July 5, 1977, to imprisonment for a term of one to ten years. Appellant filed an appeal to this court but subsequently withdrew it.

On November 7, 1977, appellant filed a pro se petition for relief under the PCHA. Private counsel2 was then appointed to represent appellant and two supplemental petitions were thereafter filed. The petitions were denied without conducting an evidentiary hearing and this appeal ensued.

Appellant first contends that his trial counsel was ineffective in failing to object to allegedly prejudicial statements which are alleged to have pertained to appellant’s religious beliefs and his association with the Black Muslims. At the suppression hearing (the testimony from which was later [290]*290incorporated into the trial), Trooper Drenning was asked the following on cross-examination:

“Q. Now, did you receive information regarding drugs coming to the house in reference to Gerald Ashley or in reference to the owner of the house?
A. The only information that I had, Counselor, was that drugs were coming from Philadelphia, Muslim drug traffic was coming from Philadelphia to that residence, I did not know who would be bringing it.” (N.T. 7).

In addition, Trooper Drenning and appellant’s trial counsel made two other references to the Muslims in the same context. (N.T. 7, 8).

In assessing the effectiveness of counsel, we are guided by the principle set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967):

“We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” (Emphasis in original). (Footnote omitted).

Accord: Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Little, 468 Pa. 13, 359 A.2d 788 (1976). A corollary of this principle is that before there is an inquiry into the basis for counsel’s particular course of action, it must first be determined whether the claim which counsel is charged with neglecting is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). [291]*291In other words, counsel can hardly be deemed ineffective for failing to raise frivolous issues or make fruitless objections. Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978); Commonwealth v. Hubbard, supra; Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974).

Instantly, we are of the opinion that any objection counsel could have made to alleged prejudicial statements regarding appellant’s religious beliefs would have been fruitless for the simple reason that the record does not reflect any such statements having been made. Appellant was never identified as a Black Muslim, nor were any statements admitted pertaining to his religious beliefs. Cf. Commonwealth v. Mimms, 477 Pa. 553, 385 A.2d 334 (1978). Rather, it was merely established that on one occasion appellant was observed leaving a house which the police believed to be the receiving point of a Muslim drug operation. In our view, these isolated statements concerning the Muslims in relation to the circumstances giving rise to appellant’s arrest cannot be considered the equivalent of a statement that appellant was a Black Muslim or was associated with that group. Given the fact that this case was tried non-jury and that the isolated references to Black Muslims were neither inherently prejudicial nor vital to the case, we are confident that they had no effect on the outcome of appellant’s trial. See Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975).

Lastly, it is asserted that trial counsel was ineffective for not presenting any defense evidence on behalf of appellant including counsel’s failure to call as a witness the woman who was in appellant’s company when he was arrested. This contention is meritless on two grounds.

First, and foremost, we do not believe this issue has been properly preserved for review. As previously noted, appellant filed a pro se PCHA petition followed by two counselled, supplemental petitions. While both the original [292]*292petition and the final supplemental petition call into issue trial counsel’s effectiveness regarding the reference to Black Muslims, both of these petitions are silent as to any question pertaining to the presentation of defense evidence or witnesses. It is only appellant’s first supplemental petition that makes the unadorned assertion that “[c]ounsel for petitioner failed to call as a defense witness a woman who was present during the search made of petitioner by the arresting officers.” We hold that this allegation was not preserved for review by virtue of the fact that it was not raised in the final supplemental petition filed on appellant’s behalf.3

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Commonwealth v. Ashley
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Bluebook (online)
419 A.2d 775, 277 Pa. Super. 287, 1980 Pa. Super. LEXIS 2489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ashley-pasuperct-1980.