Commonwealth v. Mims

392 A.2d 1290, 481 Pa. 275, 1978 Pa. LEXIS 994
CourtSupreme Court of Pennsylvania
DecidedOctober 5, 1978
Docket486 and 498
StatusPublished
Cited by6 cases

This text of 392 A.2d 1290 (Commonwealth v. Mims) 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. Mims, 392 A.2d 1290, 481 Pa. 275, 1978 Pa. LEXIS 994 (Pa. 1978).

Opinions

[277]*277OPINION OF THE COURT

O’BRIEN, Justice.

Appellant, Robert Mims, was convicted by a jury of murder of the first degree, arson, two counts of aggravated robbery, three counts of aggravated assault and battery, and conspiracy. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction, with a concurrent five to ten year sentence for the arson conviction. Judgments of sentence were suspended on all other convictions.

Appellant’s convictions resulted from a January 4, 1971, robbery of Dubrow’s Furniture Store at 419 South Street in Philadelphia. During the incident, appellant and his seven cohorts shot and killed one employee, shot and wounded another, doused yet a third with gasoline and set him on fire. All employees were stripped of their personal belongings.

Appellant raises numerous allegations of error. As we find that appellant has been denied the effective assistance of counsel, we need not reach his remaining allegations of error.1

[278]*278Appellant alleges that his trial counsel was ineffective for failing to object to an unduly suggestive in-court identification procedure. The facts are as follows.

At the time of the criminal episode, Louis Gruby was employed at Dubrow’s as a “greeter.” Gruby would ask prospective customers what they were looking for and then direct them to the proper area and salesmen. Gruby and another employee, Audrey Dimeo, were the only employees able to identify any of the participants in the crime. In fact, three days after the robbery, Gruby aided a police artist in making a composite sketch. Appellant was nonetheless able to elude capture until September 20, 1974.

At trial, appellant was placed along with seven other men with similar characteristics in the front row of seats in the [279]*279courtroom rather than at the defense table. Mr. Gruby testified that during the incident, he had an ample opportunity to see appellant. He further testified he had seventeen years of army intelligence training involving the observation and description of persons. Gruby stated that he was “absolutely” certain of his identification. However, when asked to identify appellant, Gruby identified another individual as the person participating in the robbery. At the time of the identification, no one informed Gruby that the man he identified was not appellant.

Following a very brief cross-examination by defense counsel, the district attorney showed Gruby the composite sketch which was made three days after the criminal episode. The following exchange then took place:

“BY THE COURT:
“Q. Mr. Gruby,—
“A. Yes, sir.
“Q. —since the incident on January the 4th that took place that you’ve just described, have you seen the man that you identified as Mr. Mims, since that incident in the store?
“A. I have never seen the man, no, since that incident.
“Q. You’ve never seen him in person since that incident.
“A. Not that I can recall, sir.
“Q. And that’s four years and some months ago; is that correct?
“A. Yes. And I’ve been away from Dubrow’s now for over — next month it will be two years since I retired.
“Q. And you described certain facial characteristics that you recall stood out in your mind, is that correct,—
“A. Yes, sir.
“Q. —to the police? And you also described the height; is that correct?
“A. Yes, sir.
“Q. All right. Now, Mr. Gruby, in response to the District Attorney’s question, you went down and — he asked you if you could identity Mr. Mims in the [280]*280courtroom, and you went down rather hurriedly and did so.
“Now, I’m going to ask you to do it again and to do it slowly and take your time. If you don’t mind. If you will go down and take your time, watch your step, and look closely at the people. Don’t answer anything and look closely at the people. Don’t answer anything until you’ve taken a good close look.
“A. Could I change my selection?”

Gruby then identified appellant as the individual who participated in the robbery-killing.

At trial, defense counsel made no objection about the trial court’s role in identifying appellant. Present appellate counsel began representing appellant at post-verdict motions, where he challenged trial counsel’s effectiveness for failing to object to the in-court identification. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

In Com. ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352 (1967), we said:

“ . . . our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” (Emphasis in original.) (Footnote omitted.)

The issue before us is thus whether trial counsel had a reasonable basis for failing to object to the court’s role in the in-court identification and whether such failure to object prejudiced appellant.

Appellate counsel argues that the questioned procedure was in error for two reasons: (1) the trial court overstepped its normal role and acted as an advocate, and (2) that the [281]*281court’s advocacy was unduly suggestive, thus tainting the in-court identification. Appellant believes the entire procedure violated due process, which deprived him of a fair trial, and that trial counsel was ineffective in not objecting to the trial court’s conduct.

In Commonwealth v. Butler, 448 Pa. 128, 134-35, 291 A.2d 89, 92 (1972), we stated:

“ . . . If a judge followed the practice which this judge advocated here, a practice of questioning every witness whom the judge did not believe to be telling the truth, while questioning no other witnesses, it would be tantamount to telling the jury his views of which witnesses were to be believed. Credibility is solely for the jury. Just as a trial judge is not permitted to indicate to the jury his views on the verdict that they should reach in a criminal case, Commonwealth v. Motley, 448 Pa. 110, 289 A.2d 724 (1972), Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72

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Commonwealth v. Mims
392 A.2d 1290 (Supreme Court of Pennsylvania, 1978)

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Bluebook (online)
392 A.2d 1290, 481 Pa. 275, 1978 Pa. LEXIS 994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mims-pa-1978.