Com. v. Barnes

• Court: Superior Court of Pennsylvania
• Writing for the Court: Before WATKINS; PER CURIAM; PER CURIAM; VAN der VOORT; PRICE; PRICE
• Citation: 248 Pa.Super. 579,375 A.2d 392
• Decision Date: 29 June 1977
• Parties: COMMONWEALTH of Pennsylvania v. Robert BARNES, Appellant.

Page 392

375 A.2d 392 248 Pa.Super. 579 COMMONWEALTH of Pennsylvania
v.
Robert BARNES, Appellant. Superior Court of Pennsylvania. Submitted June 14, 1977.
Decided June 29, 1977.

Page 393

[248 Pa.Super. 582] Marilyn J. Gelb, Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

PER CURIAM:

Appellant's first trial, following a denial of his motion to suppress, resulted in a mistrial when the jury could not reach a verdict. Appellant's second trial, also before

Page 394

a jury, resulted in his conviction of burglary of a State Liquor store and aggravated assault. The resulting judgment of sentence was affirmed per curiam. Commonwealth v. Barnes, 223 Pa.Super. 705, 296 A.2d 53 (1972). This appeal is from a denial of PCHA relief. Appellant raises four claims of ineffectiveness of counsel. Three of these claims are without merit, but since the PCHA judge failed to consider the fourth claim, we remand for consideration of that claim. I

Appellant alleges that his trial counsel, who also represented appellant on his first appeal, was ineffective. "(C)ounsel'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." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). The burden of establishing this claim is upon appellant. Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

[248 Pa.Super. 583] A

Appellant's first claim is in two parts.

(1)

At trial a police officer testified that when appellant was arrested, at the residence of his uncle, a pistol was found near his feet. This pistol was introduced into evidence at the second trial; it had not been introduced into evidence at the first trial. At the PCHA hearing appellant testified that the pistol had not been near his feet, but in an upstairs bedroom with his aunt. ¹ Appellant claims that counsel was ineffective for failing to call his aunt to testify at trial. However, appellant did not call the aunt to testify at the PCHA hearing. Appellant further admits that he is unaware of her whereabouts, so it is unclear that she would ever be able to be called as a witness. Trial counsel is deceased, and therefore no rebuttal of appellant's testimony is possible. Appellant's self-serving, unsupported testimony is not sufficient to demonstrate that counsel failed to call an available and valuable witness, or to meet appellant's burden of presenting competent evidence of an omitted meritorious claim.

(2)

During counsel's closing remarks he evidently erroneously stated that the pistol had not been introduced into evidence. He was corrected by the prosecutor in his own closing speech. During his speech, the prosecutor waved the gun. Counsel objected to this action on the ground that the gun had not been admitted into evidence, but when informed that it had been admitted, he withdrew his objection. Appellant contends that counsel was ineffective for failing to preserve his objection, and cites Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972). In Glover, the objection was to the prosecutor's display of a knife during his closing [248 Pa.Super. 584] speech when in fact no knife had either been recovered by the police or introduced into evidence. Appellant's contention that counsel was ineffective for not objecting to the introduction of the gun fails to consider that counsel had unsuccessfully sought to exclude the gun in his pre-trial suppression motion.

B

At appellant's first trial one Walter O'Rourke, who had participated in the crime, and whose statements to the police had led to appellant's arrest, testified for the Commonwealth. At the second trial the Commonwealth chose not to call O'Rourke. However, in his opening statement, and at various points during the trial, defense counsel elicited testimony regarding...