Commonwealth v. Gaither

366 A.2d 580, 244 Pa. Super. 54, 1976 Pa. Super. LEXIS 2142

• Court: Superior Court of Pennsylvania
• Decided: November 22, 1976
• Docket: 48
• Status: Published

Opinions

PRICE, Judge:

On January 14, 1975, the appellant was convicted by a jury of possessing a controlled substance (heroin) with the intent to manufacture or deliver, and carrying a firearm without a license. On this direct appeal, appellant contends that his trial counsel was ineffective.¹ We affirm.

The Commonwealth’s case consisted of the testimony of three Harrisburg policemen. The policemen testified that as a result of a conversation with an informant, they proceeded to the J. J. Bar on North Third Street. There, they observed appellant’s parked automobile. After a search of the area around appellant’s car proved fruitless, the officers returned to their patrol car to await appellant. When appellant exited from the bar and approached his automobile, one of the officers hailed him.

The appellant hurried to the front of his car, away from the approaching policemen, with one hand in his pocket. When the police reached the appellant, they found approximately forty-five packets of heroin beneath the front of the automobile. A search of appellant uncovered a .45 caliber automatic pistol.

Appellant’s first allegation of ineffectiveness is that his trial counsel failed to cross-examine adequately the Commonwealth’s witnesses. However, our review of the record reveals that counsel’s cross-examination of the three policemen was lengthy and in depth. He .explored all of the circumstances surrounding the arrest, emphasizing that none of the policemen saw appellant drop the drugs. He pointed out some inconsistencies between one officer’s testimony at the pre-trial hearing and at trial. Therefore, an allegation of ineffectiveness cannot be predicated upon the adequacy of counsel’s cross-examination.

The second allegation of ineffectiveness is that counsel failed to move for a mistrial when'the district attorney made improper remarks during his closing statement. During the trial, one of the police officers was about to testify to what the informant had told him. This testimony was properly excluded as hearsay. During his closing statement, the district attorney began to tell the jury that they could infer what the informant had said to the police. Appellant objected, the objection was sustained, and the court issued a cautionary instruction.

It is clear that counsel’s failure to move for a mistrial was not ineffectiveness. Counsel may have believed that the error was cured by his objection and the court’s instruction. We cannot now say that his conclusion was wrong at the time. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Moreover, as the lower court notes in its opinion, a motion for mistrial would properly have been denied. A failure to file a futile motion cannot support an allegation of ineffectiveness. Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973).

Appellant’s final allegation of ineffectiveness is that counsel failed to appear for oral argument on his post-trial motions. The record does not reveal counsel’s reasons for not appearing to argue. However, as we have noted on many occasions, counsel will not be held ineffective for failure to perform an act that would be futile. Commonwealth v. Fisher, 243 Pa.Super. 128, 364 A.2d 483 (1976). This results from the standard Pennsylvania employs to determine ineffectiveness. In Commonwealth ex rel. Washington v. Maroney, supra, the Supreme Court of Pennsylvania states:

“Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.” 427 Pa. at 605 n. 8,235 A.2d at 353 n. 8.

See also Commonwealth v. Robinson, supra; Commonwealth v. Badger, 238 Pa.Super. 284, 357 A.2d 547 (1976); Commonwealth v. Betts, 234 Pa.Super. 642, 341 A.2d 912 (1975); Commonwealth v. Hill, 231 Pa.Super. 371, 331 A.2d 777 (1974).

In this case, appellant’s written post-trial motions consisted of blanket challenges to the sufficiency of the evidence. Appellant does not allege that counsel should have raised other errors in his post-trial motions. Therefore, at oral argument, counsel would have been restricted to arguing the sufficiency of the evidence. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). The evidence in this case, however, was clearly sufficient. Therefore, the potential for success would not have been substantially greater if counsel had argued the motions. Thus, we cannot conclude that counsel was ineffective.

The judgment of sentence of the lower court is affirmed.

SPAETH, J., files a dissenting opinion in which HOFFMAN, J., joins.

1 . Because appellant is represented on appeal by counsel other than his trial counsel, this issue is ripe for decision. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).