Commonwealth v. Wilson

393 A.2d 1141, 482 Pa. 350, 1978 Pa. LEXIS 1012

• Court: Supreme Court of Pennsylvania
• Decided: October 5, 1978
• Docket: 81
• Status: Published

Opinions

OPINION OF THE COURT

O’BRIEN, Justice.

Appellant, Michael Wilson, was convicted by a jury of murder of the first degree for the shooting death of Gregory Davis. Post-verdict motions were denied and a direct appeal was filed to this court where we affirmed by an equally-divided court. Commonwealth v. Wilson, 463 Pa. 1, 329 A.2d 881 (1974). Counsel told appellant he would file a petition for reargument; however, no such petition was filed within the required time.

Appellant subsequently filed a pro se petition under the Post Conviction Hearing Act (PCHA).¹ Counsel was appointed and an amended PCHA petition was filed. Following a hearing, the court below granted appellant permission to file a petition for reargument nunc pro tunc,2 but denied all other requested relief. Appellant now appeals from that portion of the order denying relief.

Appellant claims that he has been denied his constitutional right to effective assistance of counsel. For reasons hereinafter stated, we do not believe appellant is entitled to relief.

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

“. . . 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.)

As a corollary, counsel is not ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). It is with this standard in mind that we must review appellant’s allegations of ineffective assistance of counsel.

Appellant first claims that trial counsel was ineffective for failing to object to portions of the prosecutor’s closing remarks, which appellant believed to be inflammatory. The comments concern appellant’s failure to take the stand and alleged expressions of the prosecutor’s personal beliefs. We believe, however, that appellant failed to preserve this question for appellate review.

In his amended PCHA petition, appellant made a general allegation that trial counsel was ineffective for failing “to raise and preserve on appeal issues of inflammatory summation and other prosecution misconduct.” At the hearing, appellant’s counsel made no specific argument on this claim. When counsel filed a brief in support of the PCHA petition eleven days after the hearing, specific instances of alleged inflammatory summation were alluded to for the first time. Under these circumstances, we believe appellant has waived this claim.

In Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 608, 235 A.2d at 354, we stated:

“As with other assertions of a denial of constitutional rights in post conviction proceedings, the burden remains throughout with the prisoner to demonstrate any constitutional deprivation.”³

Once a prisoner has made such a showing, the Commonwealth can, of course, call witnesses to rebut his allegations. More specifically, in this case, once appellant would have shown instances where it seemed that trial counsel should have objected, the Commonwealth could then have called trial counsel to the stand to explain his failure to object, thus showing either his effectiveness or lack of effectiveness.

Because of appellant’s failure to allude to specific instances of inflammatory summation before the PCHA hearing, the Commonwealth never had the opportunity to call trial counsel to explain his actions. For reasons similar to this, Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), and its progeny require a certain degree of specificity to preserve issues for appellate review, and we do not believe that such specificity was present in this case until the brief was filed. For reasons previously stated, we believe such specificity must be met before the evidentiary hearing and not after.⁴ As we stated in Commonwealth v. Mitchell, 477 Pa. 274, 383 A.2d 930 (1978):

“We believe these claims are waived, because appellant, by waiting until after the hearing, denied the Commonwealth the opportunity to defend against assertions raised at such a late date.”

Appellant next claims that trial counsel was ineffective for failing to object to portions of the trial court’s charge to the jury. This point, however, was not raised in the counseled petition and is thus waived. Commonwealth v. Mitchell, supra, and Pa.R.Crim.P. 1506(4).

Appellant finally claims that trial counsel was ineffective for failing to question prospective jurors about a possible bias they may have had about gangs and gang-related killings. Counsel did ask one juror, “How do you feel about gang warfare?” The trial court sustained the prosecutor’s immediate objection.

In Commonwealth v. Futch, 469 Pa. 422, 426-27, 366 A.2d 246, 248 (1976), we stated:

“The singular purpose of voir dire examination is to secure a competent, fair, impartial and unprejudiced jury. In pursuit of that objective, the right of a litigant to inquire into bias or any other subject which bears on the impartiality of a prospective juror has been generally recognized. Nevertheless, the scope of voir dire examination rests in the sound discretion of the trial judge and his decisions will not be reversed unless there is an abuse of that discretion.”

In Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973), defense counsel proposed to ask prospective jurors if they had any prejudice against either the use of alcoholic beverages or psychiatric testimony. The court refused these questions, and we upheld the refusal, stating:

“[T]he purpose of voir dire is not to determine in advance what a juror’s attitude will likely be if certain facts develop during trial. As we recognized above, the purpose of the voir dire examination is to disclose qualifications or lack of qualifications of a juror and in particular to determine whether a juror has formed a fixed opinion as to the accused’s guilt or innocence.” Id., 452 Pa. at 135-36, 305 A.2d at 8.

As in Johnson, appellant in this case was not entitled to determine in advance a juror’s attitude about gang-related incidents. As pursing this line of questioning would have been useless, counsel was not ineffective in this respect. Commonwealth v. Rice, supra.

Order affirmed.

MANDERINO, J., files a dissenting opinion in which ROBERTS, J., joins.

1 . Act of Jan. 25, 1966, P.L. 1580, § 1, 19 P.S. § 1180-1, et seq.

2 . Appellant filed the petition for reargument nunc pro tunc, which we denied.

3 . The Post Conviction Hearing Act provides:

“If a petition alleges facts which if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer.” 19 P.S. § 1180-9. (Emphasis added.)

We allude to this section because appellant advanced only legal theories until specific facts were given in the brief in support of his petition.

4 . In Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (filed January 26, 1978), we held that an issue can be preserved for appellate review by filing post-verdict motions and then point to specific instances by either briefing or arguing those points. In Williams, however, strictly legal issues were involved with no evidentiary hearing required, and because of this fact, we believe Williams is inapposite to the instant case.