Commonwealth v. Burton

417 A.2d 611, 491 Pa. 13, 1980 Pa. LEXIS 739
CourtSupreme Court of Pennsylvania
DecidedJuly 3, 1980
Docket444
StatusPublished
Cited by74 cases

This text of 417 A.2d 611 (Commonwealth v. Burton) is published on Counsel Stack Legal Research, covering Supreme 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. Burton, 417 A.2d 611, 491 Pa. 13, 1980 Pa. LEXIS 739 (Pa. 1980).

Opinions

OPINION

EAGEN, Chief Justice.

On May 31, 1973, the warden and deputy warden of Holmesburg Prison in Philadelphia were slain within the confines of the prison. Appellant, Frederick Burton, and another inmate, Joseph Bowen, were charged with the murders. On June 8, 1976, a jury found Burton guilty of one count of murder of the second degree. Post-verdict motions were filed and denied after a hearing. Burton was then sentenced to a term of life imprisonment.

In this appeal, Burton complains of several alleged instances of ineffective assistance of trial counsel.1 However, we find each of these claims to be without merit.

[18]*18Where, as here, counsel is claimed to be ineffective for not properly preserving issues in the trial court for appellate review, in evaluating the effectiveness of counsel this Court utilizes a two-step analysis. First, we must determine whether the issue underlying the charge of ineffectiveness is of arguable merit.2 If the underlying issue is found to be of arguable merit,3 our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth v. Evans, supra; Commonwealth v. Sherard, supra; Commonwealth v. Hubbard, supra.

Presently, Burton contends his trial counsel was ineffective for failing to object to the Commonwealth’s impeachment of defense witness Joseph Bowen by questions concerning prior arrests which had not resulted in convictions and questions concerning prior convictions involving non crimen falsi crimes. At trial, the Commonwealth cross-examined Bowen4 with regard to a prior shooting of an elderly couple for which he had been arrested but not convicted5 and his prior convictions for assault with intent to kill and [19]*19murder of a police officer. These questions were received and answered without objection by defense counsel.6

In Pennsylvania, a witness may now be impeached by showing a prior conviction only if the crime involved dishonesty or false statement. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978); Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973). Accord Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Assault with intent to kill and murder are not such crimes. Furthermore, prior criminal acts not resulting in a conviction are not admissible to impeach a witness’ credibility. Commonwealth v. Katchmer, supra; Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). Thus, Burton’s claim that the Commonwealth’s questions were objectionable is of arguable merit.

However, turning to the second part of the test for effectiveness of counsel, we find that a reasonable basis for not objecting to the questions complained of clearly existed and that counsel’s assistance cannot, thus, be considered ineffective.7

[20]*20Burton's defense at trial was based on the contention that Joseph Bowen had committed the murders alone while Burton was merely an innocent bystander. As we have already noted, on direct examination, Bowen testified to this scenario and to having already been convicted of the murders. In this context, it would be a legitimate trial strategy for defense counsel to allow the Commonwealth to emphasize Bowen’s capacity for violence and depict him as a killer. The transcript of defense counsel’s closing argument indicates that such a strategy was, indeed, relied on. Obviously, the Commonwealth’s showing that Bowen had previously been convicted of assault with intent to kill and the murder of a police officer and had also been arrested for shooting an elderly couple would further that strategy.8

Furthermore, a finding of ineffectiveness can never be made unless it is demonstrated that the alternatives not chosen offered a potential for success substantially greater than the course actually followed. See Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978); Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1976); Commonwealth ex rel. Washington v. Maroney, supra. Although the questions Burton complains of were objectionable, in light of defense counsel’s having brought out Bowen’s conviction, for the instant murders and his attempt to depict Bowen as a “killer”, about which acts Burton does not complain, we cannot conclude timely objection to those questions offered a substantially greater potential for success than the course actually followed.

[21]*21Burton also claims he was denied effective assistance of counsel because trial counsel was inebriated during the course of the trial. In support of this assertion, Burton points to an exchange between the presiding judge and his trial counsel during which the judge stated that he detected a strong odor of alcohol on Burton’s counsel’s breath and asked him if he had been drinking; counsel replied he had consumed intoxicants every morning for the last forty years; the judge then requested that counsel sufficiently limit his drinking during the trial so that the court would not be offended by his breath.

While we certainly cannot condone consumption of alcohol by counsel immediately before or during a trial, there is no indication that Burton’s counsel’s drinking rendered his assistance ineffective. The exchange Burton points to occurred at side bar9 after defense counsel insisted that a question, which had been ruled objectionable before it was completed, be fully entered on the record. After the exchange concerning counsel’s drinking, counsel was ordered to proceed; the question was placed on the record; and, trial resumed. The trial judge’s remarks do not indicate he believed Burton’s counsel was inebriated and/or incapable of effectively representing Burton. In fact, his allowing the trial to resume points to an opposite conclusion. Further, no similar incident occurred either prior or subsequent to the exchange, and the record does not show any noticeable difference between counsel’s conduct at the time of the exchange and his conduct throughout the rest of the trial. Lastly, other than implying that his counsel’s drinking resulted in counsel’s failure to object to the questioning of defense witness Bowen about his prior arrests and convictions, an allegation of ineffectiveness we have already disposed of, Burton does not assert any instance in which counsel’s drinking resulted in ineffective assistance.

In his final assignment of error, Burton complains that trial counsel was ineffective for failing to raise allegedly [22]*22inflammatory closing remarks of the prosecuting attorney as reversible error in post-verdict motions. Burton’s contention refers to the following segments of closing argument:

“And, Ladies and Gentlemen, this case occurred at Holmesburg Prison.

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Bluebook (online)
417 A.2d 611, 491 Pa. 13, 1980 Pa. LEXIS 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-burton-pa-1980.