Commonwealth v. Gwaltney

442 A.2d 236, 497 Pa. 505, 1982 Pa. LEXIS 392
CourtSupreme Court of Pennsylvania
DecidedMarch 10, 1982
Docket80-3-772
StatusPublished
Cited by63 cases

This text of 442 A.2d 236 (Commonwealth v. Gwaltney) 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. Gwaltney, 442 A.2d 236, 497 Pa. 505, 1982 Pa. LEXIS 392 (Pa. 1982).

Opinions

OPINION OF THE COURT

LARSEN, Justice.

On December 8, 1975, appellant, Anthony Gwaltney, was convicted by a jury of murder of the third degree and criminal conspiracy in connection with the murder of John Wearing. Motions for a new trial and arrest of judgment were denied, and appellant was sentenced to consecutive prison terms of ten to twenty years on the murder conviction and five to ten years on the conspiracy conviction. Represented by the same counsel, appellant filed a direct appeal with this Court, and the judgments of sentence were [509]*509affirmed. Commonwealth v. Gwaltney, 479 Pa. 88, 387 A.2d 848 (1978).

On November 27,1978, appellant filed a pro se petition for relief under the Post Conviction Hearing Act1 in the Court of Common Pleas of Philadelphia County. Represented by new counsel, appellant filed an amended petition on March 9, 1979. A hearing was held on January 21 and 28, 1980. The instant appeal is from the P.C.H.A. Court’s denial of appellant’s petition.

Appellant’s contentions are all premised upon his trial counsel’s alleged ineffectiveness.2 The P.C.H.A. court found these contentions to be without merit. We agree.

The test of constitutionally effective assistance of counsel is whether a “particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests”. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) (emphasis in the original). The initial factor that is considered in applying this standard is whether the matters counsel is charged with failing to competently pursue had arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Initially, appellant contends that trial counsel was ineffective for failing to object to the prosecutor’s question at trial to appellant’s exercise of his right to counsel during interrogation. On March 5, 1975, appellant was taken into custody by the police and interrogated in connection with the murder of John Wearing. At that time appellant made an exculpatory statement. At trial, during direct examination by the prosecutor, the interrogating officer read appellant’s statement into the record. On cross-examination, appellant’s [510]*510counsel elicited from the interrogating officer that appellant did not request that an attorney be present during the interrogation. However, on redirect, when asked by the prosecutor if an attorney had appeared for the appellant on the day of the interrogation, the interrogating officer answered affirmatively.

Appellant claims that the prosecutor’s question concerning the presence of appellant’s attorney at this interrogation was constitutional error and that trial counsel was ineffective for failing to object. Appellant bases this contention on Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). In Haideman, this Court held that testimonial reference to an accused’s silence and request for an attorney at time of arrest is a violation of the Fifth Amendment, and is reversible error. Haideman is based on the policy that a prosecutor should not be permitted to use a defendant’s exercise of a Fifth Amendment right to suggest an inference of guilt. However, it is not a violation of the Fifth Amendment for a prosecutor to elicit testimony concerning a defendant’s exercise of his Fifth Amendment rights, if it is not designed to suggest an inference of guilt, but rather to refute an inference that the defense has improperly suggested. Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1977).

In his cross-examination of the interrogating officer, defense counsel attempted to mislead the jury into believing that appellant had never requested that a lawyer be present on the day of the interrogation, and thus was endeavoring to create the misimpression that appellant decided to forgo his Fifth Amendment right to counsel to suggest an inference of innocence. Thus, the question by the prosecutor was proper because it was designed to prevent the jury from being misled. Appellant’s contention that the prosecutor’s reference to appellant’s representation during interrogation was improper is without merit. Consequently, appellant’s trial counsel was not ineffective for failing to object to the prosecutor’s question.

[511]*511Appellant next contends that trial counsel was ineffective for failing to object to the prosecutor’s following closing remarks to the jury concerning the seriousness of gang violence:

The Constitution of the United States provides that in every criminal case, the defendant is entitled to a jury to decide whether or not he is guilty, and you have been selected to perform that job, and without you this system could not function, but you are also not only a contribution to the system, but you are a contribution in a way to what happens outside the courtroom because as Mr. Every pointed out to you, the problem of gangs and gang violence is one that is experienced all over this City, and it’s a serious problem. It’s one which touches many thousands of people. So what you decide in this courtroom today, ladies and gentlemen, not only affects the system in City Hall, but it affects what happens outside City Hall as well

Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974), posits the following standard for determining whether a prosecutor’s remarks to a jury are proper: “[CJomments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weight the evidence objectively and render a true verdict”.

It is apparent that the prosecutor’s remarks were made in an attempt to apprise the jury of the nature of its duty, as well as the impact of its verdict on the community. Within proper limits a prosecutor may argue for law and order and remind the jury of the danger to the community presented by individuals inclined to be violent. Commonwealth v. Nesbitt, 276 Pa.Super. 1, 419 A.2d 64 (1980). The prosecutor’s reference to the community problem of gangs and gang violence was not such that it would destroy the jury’s ability to objectively weigh the evidence and render a true verdict. Moreover, it should be noted that the prosecu[512]*512tor admonished the jury that it should put aside all sympathy and base its verdict solely on the evidence.3

Furthermore, at the P.C.H.A. hearing, appellant’s trial counsel stated that he did not object to the prosecutor’s remarks because his strategy was to permit the jury to be persuaded that a gang member had committed the murder, and then prove that appellant was not a gang member. Trial counsel’s strategy was a deliberate tactical choice, that had a reasonable basis designed to effectuate appellant’s best interests.

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Bluebook (online)
442 A.2d 236, 497 Pa. 505, 1982 Pa. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gwaltney-pa-1982.