Commonwealth v. Hamilton

418 A.2d 442, 274 Pa. Super. 350, 1980 Pa. Super. LEXIS 1898

• Court: Superior Court of Pennsylvania
• Decided: January 11, 1980
• Docket: 308 and 309 Special Transfer Docket
• Status: Published

Opinions

ROBERTS, Judge:

In this appeal from denial of relief under the Post Conviction Hearing Act,¹ appellant contends that trial counsel was ineffective. We agree, reverse the order of the PCHA court and award appellant a new trial.

On March 27, 1972, a jury convicted appellant of two counts of murder of the first degree and one count each of burglary and robbery. After denying post-verdict motions, the trial court sentenced appellant to concurrent terms of life imprisonment on each of the charges of murder and concurrent terms of imprisonment of 10 to 20 years on each of the other counts. The Supreme Court, equally divided, affirmed the judgment. See Commonwealth v. Hamilton, 460 Pa. 686, 334 A.2d 588 (1975). Appellant obtained new counsel and filed a PCHA petition alleging ineffective assistance of counsel who had represented him at trial and on direct appeal.² After a hearing, the PCHA court denied the petition.

Appellant contends that trial counsel was ineffective for failing to object and request a mistrial when the prosecutor made the following remarks during closing argument:

“Our best witness isn’t here today, but if the Bodensteins [the victims] were here today, they would say to you they didn’t want to die, and who is this defendant that he can play God and decide and determine the day and time that they were to die. They had a business that they had worked on for eighteen years together, a part of the community, and this defendant along with A1 Davis decided that it was time for them to give up their business. He made that decision along with A1 Davis that it was time for them to lose all that they had worked for these eighteen years. Does he have the right to do that? Does he have the right to say whether anyone should go out of business? Does he have the right to say now is your time to die and I so decree it by my acts and actions? Does he? If you find this defendant not guilty after all that evidence and testimony presented in this case, then you are saying he does have that right to take that which others have worked and scuffled for and earned to satisfy his desire for beers and whiskey. Are you going to say that by allowing this defendant to walk out of here based on the evidence that you have heard, using your basis and God-given common sense? Well, if you do that, if you let him fool you, if you let him pull the wool over your eyes and say because I only went to the fifth grade I didn’t know what I was doing, or that I couldn’t have been a party to that, if you let him go scott free based on this evidence, then I say to you David and May Bodenstein died in vain — died in vain, and all the other David and May Bodensteins will die in vain—

[Defense counsel]: That’s objected to, sir.

THE COURT: Sustained.”

Appellant’s counsel objected only at the end of the summation, and then was satisfied with a brief “sustained.”

It is well established that comments such as these are prejudicial to the defense, that trial counsel should object to them and request a mistrial and that failure to take such action constitutes ineffective assistance. See Commonwealth v. Mayberry, 479 Pa. 23, 387 A.2d 815 (1978) (curative instructions inadequate where prosecutor emphasized that victim’s mother would never see him again and implored jurors, as representatives of community, to demonstrate by verdict of guilty that they would not tolerate such killings); Commonwealth v. Evans, 479 Pa. 100, 387 A.2d 854 (1978) (prosecutor told jurors that his best witness, the victim, wasn’t present, and emphasized loss to victim’s family his death caused); Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974) (prosecutor warned jurors not to let defendant “fool” them, stated that victim, if he were able to testify, would say that he did not want to die, accused defendant of playing God in determining when victim’s life should end and threatened that verdict of acquittal would lead to further killings); Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974) (prosecutor told jurors that his best witness, the victim, was not present, but if he were, would testify that he didn’t want to die).

Trial counsel is deemed ineffective if his strategy had no reasonable basis designed to promote the interests of his client. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In failing to object to these comments and request a mistrial, appellant’s counsel could have had no reasonable strategy in mind. See Commonwealth v. Black, 480 Pa. 394, 390 A.2d 750 (1978). Counsel’s belated objection, eliciting little relief and failing to request a mistrial, did not protect appellant’s interests.

Therefore, we reverse the order of the PCHA court and grant appellant a new trial.³

LIPEZ, J., files a concurring opinion.

1 . Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq. (Supp. 1978-79), repealed, Act of April 28, 1978, P.L. 202, effective June 27, 1978.

2 . The PCHA proceedings were appellant’s first opportunity to raise ineffective assistance of trial counsel. Accordingly, his claim is properly preserved. See Commonwealth v. Black, 480 Pa. 394, 390 A.2d 750 (1978).

3 . Appellant cites other instances of alleged prejudicial comment in the prosecutor’s closing argument to which trial counsel did not object and request a mistrial. In view of our disposition, we do not consider whether trial counsel was ineffective in those instances.