Commonwealth v. Cohen

23 Pa. D. & C.3d 557, 1982 Pa. Dist. & Cnty. Dec. LEXIS 379
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJuly 26, 1982
Docketnos. 2788, 2789, 2790, 2791 of 1975
StatusPublished

This text of 23 Pa. D. & C.3d 557 (Commonwealth v. Cohen) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Cohen, 23 Pa. D. & C.3d 557, 1982 Pa. Dist. & Cnty. Dec. LEXIS 379 (Pa. Super. Ct. 1982).

Opinion

BIESTER, JR.,J.,

Defendant has filed a petition pursuant to the provisions of the Post-Conviction Hearing Act. Essentially what is raised as the matter has been ultimately briefed to the court is that defendant was denied effective assistance of counsel in that defendant’s counsel advised defendant to waive his pre-trial motions in order to receive an opportunity to be administered a polygraph examination and in that defendant’s counsel failed to object to the admission of evidence that defendant took and failed that polygraph examination and that defendant was denied effective assistance of appellate counsel in that defendant’s attorney did not pursue any post-trial motions beyond boiler plate motions and did not pursue any appeal from the sentence defendant received.

We believe that the issues may be distilled down to the question of whether defendant’s attorney rendered ineffective assistance of counsel in facilitating the taking of the polygraph examination and in counseling agreement to the admissibility of the results of the examination in the event defendant failed the examination and in declining to object to the admission of those results at trial.

Although defendant has raised issues of ineffectiveness of counsel with respect to the post-verdict motions and post-sentence failure to appeal, the only substantive issue which defendant raises in his brief apart from the failure to take more vigorous procedural steps is the issue of the admission of the results of the polygraph examination. Although defendant initially raised a number of other substantive issues, a fair reading of defendant’s attorney Eisman’s testimony and a fair reading of the record demonstrates to this court and apparently [559]*559had demonstrated to present counsel for defendant (in light of his briefing only the polygraph issue) that the various other substantive issues relating to various post and pre-trial motions and other matters lacked sufficient merit to warrant raising in post-verdict motions or on appeal.

We therefore now take up the question of whether the decisions of defendant’s attorney with respect to seeking the polygraph examination and declining to object to its admission had some reasonable basis: Com. v. Everett, 297 Pa. Superior Ct. 320, 443 A. 2d 1142 (1982).

First the context of Mr. Eisman’s decision-making process has to be understood. Defendant was charged with robbery, and there were four eyewitnesses who had identified him and were prepared to identify him at trial as one of the perpetrators. Both defendant and his attorney were concerned because of the overwhelming nature of the evidence against him. It was defendant himself who initiated the idea of taking the polygraph test. The practice in the Bucks County District Attorney’s office at the time of the taking of this polygraph examination was essentially that if defendant passed the examination the case would be nolle prossed, and if defendant failed the examination the fact of that failure would be admissible into evidence and defendant would agree to waive any objection to its admissibility.

In light of the overwhelming nature of the case against defendant, one could understand that defendant would clutch at any straw that might be available. The considerations which Mr. Eisman took into account in making the judgments which he made are fully set out in his testimony which testimony the court found credible and believed:

[560]*560BY MR. FRITSCH:

“Q. Excuse me. Why did Mr. Cohen tell you that he wished to take the polygraph test?

A. He maintained his innocence. He said that he felt this could prove his innocence and in the posture of the case, the way the Commonwealth’s evidence stood, I think both Allen and myself were concerned because of the overwhelming nature of the evidence again [sic] him that this was probably the only way he could show his innocence.”

“Q. And did you, in fact, explain to Mr. Cohen the ramifications of taking that polygraph test with respect to the stipulation and the agreement to nolle prosse the case?

A. I did.

Q. At any time did he tell you that he did not wish to take the test under that agreement?

A. No. He insisted he wanted to take the test, that the test would prove that he was innocent.

Q. And in a case such as this, ao you mentioned, would it have been your advice to him to take such a test in light of the fact that there were four eyewitnesses to this particular crime who had identified him?

A. Well, my initial advice was that before he takes a lie detector test administered by the District Attorney’s Office up here, that we get our own person in to take our own lie detector test to insure that the results would show, in fact, his responses would be correct. At that time, I think there was a financial problem, and I think Mr. Cohen was so convinced he would pass the lie detector test because he strongly maintained his innocence, that he didn’t feel it was necessary.

Q. Now, with respect to the admission of the [561]*561polygraph results at trial, did you object to the admission of the results at trial?

A. I had made an agreement with the District Attorney’s Office, Bucks County, and I did not think it was professionally responsible or honest or — to go against that agreement.”

Mr. Eisman further went on to amplify his reasoning with respect to the interrelationship of certain pre-trial motions and their disposition and the matter of the projected lie detector test. His testimony in that respect was as follows:

“MR. EISMAN:

My motion to suppress covered all statements made by the defendant. This letter was sent because information was brought to me, I believe, from the family saying that these people were involved, it was pending before Judge Beckert on the nolo plea and I believe that that time, that by going to Judge Beckert, it would insure that if any investigation was going to take place, it would be done under the judge’s supervision, not just thrown in the waste basket if the District Attorney’s Office didn’t want to pursue it.

Q. Do you recall any reason for not pursuing the motion to suppress and the in-person identification of Mr. Cohen at the preliminary hearing?

A. I don’t recall any specific reason for not pursuing any of the other motions except that after reviewing all the facts, that it was my professional judgment that, not only would it be wasting the Court’s time, but probably harming the overall situation with respect to Allen by pursuing these motions.

Q. How would it harm the situation?

A. Well, as I said before, there were a lot of fac[562]*562tors involved with Allen Cohen’s case, alot of which we have not explored; but Allen was, I believe, on parole at the time, had a substantial amount of back time facing him. He also had a record, which, for his age, unfortunately, was extremely lengthy. I don’t know how many pages it was, but having been involved in representing him before, I know that it was a very bad and extensive record.

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Related

Commonwealth v. McIntosh
435 A.2d 1263 (Superior Court of Pennsylvania, 1981)
Commonwealth v. Chapman
386 A.2d 994 (Superior Court of Pennsylvania, 1978)
Commonwealth v. McKinley
123 A.2d 735 (Superior Court of Pennsylvania, 1956)
Commonwealth v. Pfender
421 A.2d 791 (Superior Court of Pennsylvania, 1980)
Commonwealth v. Everett
443 A.2d 1142 (Superior Court of Pennsylvania, 1982)
Commonwealth v. Brooks
309 A.2d 732 (Supreme Court of Pennsylvania, 1973)

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Bluebook (online)
23 Pa. D. & C.3d 557, 1982 Pa. Dist. & Cnty. Dec. LEXIS 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-cohen-pactcomplbucks-1982.