Com. v. Bolden

• Decision Date: 17 November 1986
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Richard BOLDEN, Appellant.
• Court: Pennsylvania Supreme Court

Page 935

517 A.2d 935

512 Pa. 468

COMMONWEALTH of Pennsylvania, Appellee, v. Richard BOLDEN, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 19, 1985.

Decided Nov. 17, 1986.

David N. Rutt (Court-appointed), Washington, for appellant.

John C. Pettit, Dist. Atty., William A. Johnson, 1st Asst. Dist. Atty., Washington, for appellee.

Before NIX, C.J., and LARSEN, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

HUTCHINSON, Justice.

Richard Bolden appeals by allowance an order of Superior Court 330 Pa.Super. 569, 481 A.2d 361, affirming an order of the Washington County Court of Common Pleas denying him relief on a petition he filed pursuant to our Post Conviction Hearing Act. ¹ Appellant raises, generally, issues of (1) judicial overreaching, (2) prosecutorial misconduct and (3) ineffective assistance of counsel. The most troubling issue is appellant's trial counsel's failure, inexplicable on this record, to impeach a Commonwealth witness whose direct testimony contradicted appellant's alibi witness. The impeaching fact was stated in a report, written by the Commonwealth witness, on the basis of which counsel was otherwise cross-examining him. Because the record contains evidence from which prejudice to appellant could be inferred, the lower court's failure to inquire into or find the reason for counsel's omission in this respect leaves us with a record inadequate for appellate review.

The order of Superior Court is vacated and the case remanded to Common Pleas for an express determination of whether counsel's failure was inadvertent or consciously designed to insure appellant a means of avoiding a likely guilty verdict through ineffectiveness. ²

The record shows that on January 10, 1972, Robert Indyk was robbed and murdered at his place of business. On April 10, 1975, Michael Romano gave a statement to police that he had participated in planning this crime. ³ Romano was not present at the scene, however, when the crime was committed.

Appellant was arrested later in 1975 and was first brought to trial in Washington County on January 21, 1976. After a jury was sworn and empaneled and some testimony had been heard, a mistrial was ordered on appellant's motion. ⁴ This Court subsequently determined that subjecting Bolden to a new trial did not, under the circumstances of the case, violate his constitutional right against double jeopardy. ⁵ Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

Appellant's second trial commenced on July 7, 1977, ⁶ at which time appellant was represented by new counsel. A jury was empaneled and the trial itself began on Monday, July 11, 1977 and continued through Friday, July 15, 1977. The jury was sequestered, as were the witnesses with the exception of the Commonwealth investigating officers, appellant's investigator and, of course, appellant.

The Commonwealth relied primarily upon Romano and Darcy in presenting evidence against appellant. Romano testified that appellant had accompanied him and Nastari to the scene of the crime on January 8, 1972, for the purpose of planning it. Darcy testified that appellant confessed the commission of the crime to him. Darcy also testified about an alleged plot to kill Romano.

Appellant relied upon alibi, presenting testimony from his mother and his sister, as well as himself, about his actions on January 8 and 10, 1972. Additionally, appellant's attorney at the time of his first trial, testified in contradiction of Darcy's assertions about a plot to kill Romano.

In rebuttal, one Officer Beels testified for the Commonwealth that Mrs. Bolden, appellant's mother, had told him on February 15, 1972, that she had not seen appellant since January 6, 1972. This was in direct conflict with Mrs. Bolden's alibi testimony. After beginning deliberations, the jury asked to hear again Mrs. Bolden's testimony and Beels's rebuttal testimony in that regard. The court, over appellant's counsel's objection, permitted the transcript of that testimony to be read.

The jury found appellant guilty of robbery and first degree murder. Following denial of post-trial motions appellant was sentenced on June 2, 1978, to life imprisonment on the murder conviction and to a term of ten to twenty years imprisonment on the robbery. Superior Court affirmed the judgment of sentence, Commonwealth v. Bolden, 268 Pa.Superior Ct. 431, 408 A.2d 864 (1979), and this Court denied allocatur.

Appellant filed a Post Conviction Hearing Act petition pro se in June 1980. Counsel was appointed and hearings were held on June 1 and 2 and July 26, 1982. The hearing judge addressed the merits of all issues appellant raised, denied relief and dismissed the petition on March 10, 1983. This order was affirmed by Superior Court on June 22, 1984, and appellant's Application for Reargument was denied. Superior Court found that appellant had waived the issues concerning prosecutorial misconduct and judicial overreaching by failing to raise them at trial or on direct appeal. ⁷

We must now consider appellant's specific allegations regarding each general category of error which he raises.

I. Judicial Overreaching

Appellant did not raise the issue of judicial overreaching in his direct appeal; therefore, all but one of his complaints in this regard have been waived.

The one issue in this category which is not waived involves after-discovered evidence. Because we have granted appellant's motion for admission of that after-discovered evidence, we must address the merits of the issue appellant raises concerning the trial judge's conduct at his first trial.

As stated above, Commonwealth witness Darcy testified at the first trial about an alleged plot to kill appellant's co-conspirator, Romano. Appellant's first counsel was permitted to read the statements Darcy had made to the police. Those statements implicated that counsel, who withdrew as counsel in order to testify in the case. In order to permit appellant's new counsel to prepare for trial, the judge ordered a mistrial. Subsequently, a new trial was scheduled.

In our opinion holding that a new trial did not place appellant twice in jeopardy we stated that, "On February 23, 1976, [the trial judge] placed a statement in the record denying that he had any knowledge of Darcy's statements to the police before trial." Commonwealth v. Bolden, 472 Pa. 602, 637, 373 A.2d 90, 107 (1977) (footnote omitted). On November 29, 1984, the first trial judge was deposed for purposes of an action which appellant brought in the United States District Court. In that deposition the judge responded as follows:

Q. When did you first learn of the information that there was a murder plot or conspiracy to murder a Commonwealth witness?

A. Before the trial at which this all came out.

Q. From whom did you learn that information?

A. In a variety of ways, talking to Sam Rodgers, from the State Police, possibly from a newspaper reporter. The newspaper people knew about it.

Q. Okay.

A. I don't know how much the file disclosed.... I don't know at what time I picked up the various pieces of information but when we went into the trial, I knew the matter was in the air....

Deposition of Charles G. Sweet at 45-46.

Appellant urges from the above that we find that the judge lied at the time of the first trial and that he improperly permitted the first trial to begin knowing that appellant's attorney would be placed in an untenable position. I do not believe we need make a determination regarding the first trial judge's veracity. ⁸ The issue of judicial overreaching was addressed when we answered the double jeopardy question. At that time we stated, "Even if the trial judge was aware of Darcy's allegation, we cannot say that his failure to order pre-trial discovery sua sponte constituted grossly improper conduct in light of Pa.R.Crim.P. 310 ⁹ and the unique and troublesome situation presented to him at that time." Bolden, 472 Pa. at 646, 373 A.2d at 111 (footnote added). Considering all of the record, including the after-discovered evidence, we still believe there was no judicial overreaching. If the mistrial was not caused by judicial overreaching, then the question of when the first trial judge became aware of Darcy's allegations is not relevant in the present appeal.

II. Prosecutorial Misconduct

Appellant makes various arguments alleging prosecutorial misconduct. Those allegations relating to prosecutorial actions at the time of appellant's first trial are not relevant to this proceeding and we will not consider them.

Appellant also argues that actions by the prosecution prior to and during appellant's second trial precluded a fair trial. These specific arguments could have been raised by appellant on direct appeal and were not; therefore, they have been waived under Section 4 of the Post Conviction Hearing Act. ¹⁰

III. Ineffectiveness of Counsel

Finally, appellant sets out numerous instances of alleged ineffectiveness of counsel. We have often stated the standard to be applied in determining whether counsel was effective.

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.

Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967) (emphasis in original, footnote omitted). We also concluded, as dictum, that:

Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness...