Com. v. Betrand

• Decision Date: 16 April 1979
• Citation: 399 A.2d 682,484 Pa. 511
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. George BETRAND, Appellant.
• Court: Pennsylvania Supreme Court

Page 682

399 A.2d 682

484 Pa. 511

COMMONWEALTH of Pennsylvania, Appellee v. George BETRAND, Appellant.

Supreme Court of Pennsylvania.

Submitted Nov. 13, 1978.

Decided March 16, 1979.

Rehearing Denied April 16, 1979.

[484 Pa. 515] Joseph C. Mossop, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION

EAGEN, Chief Justice.

On April 5, 1973, George Betrand was convicted by a jury in Philadelphia of murder of the first degree, aggravated robbery, conspiracy and violating The Uniform Firearms Act. Post-verdict motions filed by trial counsel seeking arrest of judgment or a new trial were denied, and judgment of sentence of life imprisonment was imposed on the murder conviction. A concurrent term of not less than ten years nor more than twenty years imprisonment was imposed on the aggravated robbery conviction. On appeal to this Court, we affirmed the judgments of sentence. Commonwealth v. Betrand, 459 Pa. 599, 330 A.2d 864 (1975).

On October 7, 1976, Betrand filed a petition for relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1, Et seq., 19 P.S. 1180-1 Et seq. (Supp.1978-79) (hereinafter: PCHA). Following a hearing, the relief requested was denied. This appeal is from that order. ¹

Betrand alleges that the PCHA court erred in denying relief for the following reasons: (1) he was denied his constitutional right to representation by competent counsel at trial and on direct appeal; ² and, (2) he was deprived of a right not recognized at trial, but which requires retrospective application. In support of his allegation that counsel was ineffective, Betrand advances four distinct claims. However, we need only discuss the merits of three of these claims. ³

In evaluating the effectiveness of counsel, we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

"We cannot emphasize strongly enough, however, that 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.)

Accord Commonwealth v. Sherard, supra; Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Little, 468 Pa. 13, 359 A.2d 78 (1976). However, before inquiring into the basis for counsel's failure to raise certain issues at trial, we must determine if these issues are of arguable merit. Commonwealth v. Sherard, supra; Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977); Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If we conclude the issues are of arguable merit, then and only then do we proceed to inquire whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Martin, supra; Commonwealth v. Hubbard, supra.

Betrand's initial claim is that counsel was ineffective for failing to object to the following remark by the assistant district attorney during his opening statement to the jury:

"Mr. Betrand plead guilty and he just says to the Commonwealth, 'Go ahead and prove your case.' That's what we have to do and that's what we're all about." ⁴

Contrary to the prosecutor's statement, Betrand, in fact, plead "not guilty" to each indictment.

In order to obtain judicial relief, the language of the prosecuting officer in the opening statement must be such that its unavoidable effect is to so prejudice the jury against the accused and prevent the finding of a true verdict. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). Instantly, the prosecutor's inadvertence in stating Betrand "plead guilty" was not repeated at any time during the remainder of the trial. Compare Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973). Furthermore, the record reveals Betrand plead not guilty before the panel of potential jurors; that counsel repeated this plea several times during individual voir dire; that the court crier repeated the plea of "not guilty" to the members of the jury; and, that the trial judge reiterated this plea in his charge. Under all the circumstances, we find the prosecutor's isolated remark could not have prejudiced the jury against Betrand, and did not prevent the finding of a true verdict. Therefore, since we conclude the issue counsel is charged with failing to raise, through an objection, lacked arguable merit, we need not inquire into the basis for counsel's decision not to object. Commonwealth v. Hubbard, supra. Accordingly, counsel's failure to object is not ineffectiveness.

Betrand's second claim of ineffective assistance of counsel concerns the voluntariness of his inculpatory statement made subsequent to his arrest and introduced into evidence by the Commonwealth. Betrand claims counsel was ineffective for failing to inquire, during cross-examination of the detective who recorded the statement, into any circumstances which would have permitted the jury to conclude Betrand was coerced, either physically or psychologically, into making the statement. According to Betrand, counsel ignored certain facts ⁵ which provide a more than adequate basis for inquiring into the voluntariness of the confession.

A defendant has the right to present the issue of voluntariness of a confession to a jury. Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971); Commonwealth v. Joyner, 441 Pa. 242, 272 A.2d 454 (1971). "(T)he ultimate test for voluntariness is whether the confession is the product of an essentially free and unconstrained choice by its maker." Commonwealth v. Smith, 470 Pa. 220, 368 A.2d 272 (1977), quoting Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974). An evaluation seeking to determine whether a confession is voluntary must consider the totality of the circumstances. Circumstances which may be considered include the conditions of detention; the manifest attitude of the authorities toward the defendant; the defendant's physical and psychological state; and, all other conditions which may serve to drain one's power of resistance to suggestion and undermine his self-determination. See Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Commonwealth v. Simms, 455 Pa. 599, 317 A.2d 265 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

In arguing counsel was ineffective for not raising the issue of the voluntariness of his confession, Betrand ignores certain facts which are a part of the record and were within counsel's knowledge at the time he decided not to cross-examine the interviewing detective. First, there was a pretrial motion to suppress the statement which, after a hearing, was denied. At the suppression hearing, the uncontradicted testimony of the interviewing detective was that Betrand exhibited a normal mental and physical condition throughout the interview. ⁶ Second, at trial, the uncontradicted testimony of the interviewing detective was that he read Betrand the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); that Betrand acknowledged he understood the warnings; that Betrand indicated he was willing to answer any questions of his free will, without force or fear and without any threat or promise having been made to him; and, that Betrand, at the time of his confession, appeared normal, alert and responsive. Third, at trial, the uncontradicted testimony of the arresting police officer was that Betrand was not drunk and did not give any indication of being under the influence of any narcotics. Fourth, Betrand's confession, which took approximately fifty-five minutes to record, was completed within three hours of Betrand's arrest. Finally, the uncontradicted testimony of Betrand's counsel at the PCHA hearing was Betrand never gave him any evidence that he had been subject to any pressure, either physical or mental, during the course of or prior to his providing the statement to the police.

At the PCHA hearing, Betrand declined to testify or to offer any other evidence contradicting any of the facts established by the record. Rather, Betrand chose to rely on the allegations in the brief submitted to the PCHA court. ⁷ Under the totality of the circumstances, we conclude the record provides a sufficient basis for concluding the issue of the voluntariness of Betrand's statement lacked arguable merit. Therefore, counsel is not ineffective for refraining from presenting to the jury, through the cross-examination of the interviewing detective, this meritless issue. Commonwealth v. Hubbard, supra.

Betrand also claims counsel was ineffective for failing to take specific exceptions to two statements made by the trial judge in his charge to the jury. In his charge, the trial judge made the following statements:

"I do not believe it has been argued that, of the men who were arrested, George Betrand was not one of the men that ran away from the milk truck.

"I think that is about it on the evidence. I am going to give you the law, and you will have to follow this, particularly in the homicide area; not that I think it is that complicated, but there are two kinds of murder, as the Assistant District Attorney pointed out, and this is a felony murder."

Betrand argues counsel was...