Commonwealth v. Turner

563 A.2d 1262, 387 Pa. Super. 217, 1989 Pa. Super. LEXIS 2829
CourtSuperior Court of Pennsylvania
DecidedSeptember 15, 1989
DocketNo. 3167
StatusPublished
Cited by2 cases

This text of 563 A.2d 1262 (Commonwealth v. Turner) is published on Counsel Stack Legal Research, covering Superior 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. Turner, 563 A.2d 1262, 387 Pa. Super. 217, 1989 Pa. Super. LEXIS 2829 (Pa. Ct. App. 1989).

Opinion

HOFFMAN, Judge:

This is an appeal from a judgment of sentence for robbery, criminal conspiracy, and possession of a prohibited offensive weapon. Appellant contends that his trial counsel was ineffective for failing to (1) move to suppress appellant’s confession; (2) object to a comment made by the prosecutor during his summation; and (3) move for a new jury when co-defendant was granted a severance. Appellant also contends that his post trial counsel was ineffective for failing to preserve these issues for appeal.1 For the reasons that follow we disagree and, accordingly, affirm the judgment of sentence.

Appellant was arrested on October 14, 1985 pursuant to a warrant based upon information collected during an investigation of a series of bar robberies. Robbery victims had positively identified appellant and an accomplice had named appellant as a participant in several robberies. Appellant [220]*220was interviewed by a police detective and, after waiving his rights, gave an oral statement in which he admitted committing several of the robberies. The detective prepared a list of robberies to which appellant had confessed and, on October 17, 1985, he reviewed this list with appellant. Subsequently, at appellant’s request, on October 22, 1985, a formal written statement of confession was taken. Prior to trial, appellant moved to suppress this statement. On January 28, 1987, the trial court denied the motion and the case went to trial. Appellant’s trial began as a joint trial with co-defendant Joseph Bowie. After jury selection was completed, but prior to the presentation of evidence, appellant’s trial was sevtered from his co-defendant. On January 29, 1987, the jury found appellant guilty of three counts of robbery, and single counts of criminal conspiracy and possession of a prohibited offensive weapon. New counsel filed post verdict motions, which were denied. On October 22, 1987, the trial court sentenced appellant to a total of thirty-five to seventy years imprisonment. Present counsel was appointed to replace post trial motions counsel and this timely appeal ensued.

Appellant’s contentions are based upon prior counsels’ alleged ineffectiveness. When confronted with a claim of ineffective assistance of counsel, a reviewing court must consider three things:

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 [221]*221A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

The issue underlying appellant’s first claim of ineffectiveness is that his confession should not have been ruled admissible because it was not voluntarily and freely given. When reviewing the trial court’s ruling on the admissibility of a confession, we must

determine whether the factual findings are supported by the record. “In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error....

Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976). See also Commonwealth v. Fahy, 512 Pa. 298, 309, 516 A.2d 689, 695 (1986). Appellant specifically contends that his confession should not have been admitted because Detective Rago induced him to make it with a promise of a “deal” from the District Attorney. In order for a confession to be admissible it must be freely and voluntarily given. Commonwealth v. Taylor, 494 Pa. 399, 403, 431 A.2d 915 (1981). A confession “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (quoting Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 186-187, 42 L.Ed. 568 (1892)).

At the suppression hearing, Detective Rago testified to the events surrounding appellant’s arrest and subsequent confession. Appellant was arrested on October 14, 1985. After appellant was taken into custody, he was read [222]*222his rights at which point he made a statement to Detective Rago. On October 22, 1985, at appellant’s request, Detective Rago along with another officer returned to take a formal typewritten statement from appellant. N.T. January 21, 1987 at 243-251. Detective Rago denied that he had offered appellant a “deal” in exchange for his statement. The detective further testified that the reference to appellant’s cooperation was included in his written statement only because appellant himself insisted that it be mentioned. Id. at 265-266. The trial court held appellant’s confessions to be “knowingly, intelligently and willingly” given. N.T. January 28,1987 at 10. A careful review of the record does not contradict this finding. Because his underlying claim lacks merit, appellant’s derivative claim of ineffective assistance must necessarily fail.

Appellant’s second claim of ineffectiveness arises from trial counsel’s failure to object to a statement made by the prosecutor in summation.2 Appellant’s objection is based upon the following statement:

You were selected on this jury because the attorneys felt that you could be fair and impartial and you would be true to your oath, and regardless of the evidence you would return a verdict based upon what you thought to be the truth.

N.T. January 29, 1989 at 62 (emphasis supplied). Our Supreme Court has noted that:

even where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required.

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661 A.2d 3 (Superior Court of Pennsylvania, 1995)
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581 A.2d 217 (Supreme Court of Pennsylvania, 1990)

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Bluebook (online)
563 A.2d 1262, 387 Pa. Super. 217, 1989 Pa. Super. LEXIS 2829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-turner-pasuperct-1989.