Com. v. Floyd

• Citation: 484 A.2d 365,506 Pa. 85
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Calvin FLOYD, Appellant.
• Decision Date: 20 November 1984
• Court: Pennsylvania Supreme Court

Page 365

484 A.2d 365

506 Pa. 85

COMMONWEALTH of Pennsylvania, Appellee, v. Calvin FLOYD, Appellant.

Supreme Court of Pennsylvania.

Argued May 14, 1984.

Decided Nov. 20, 1984.

[506 Pa. 88] Janis Smarro, Philadelphia, (Court-appointed), for appellant.

Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Div., Allan Sacks, Philadelphia, Marion E. MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee.

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

OPINION OF THE COURT

PAPADAKOS, Justice.

Calvin Floyd appeals a Philadelphia County Common Pleas Court Order denying his post-verdict motions for a new trial and in arrest of judgment, which followed his conviction by jury of murder of the first degree and the jury's imposition of a sentence of death. For the reasons that follow, we affirm the denial of a new trial, but modify the sentence to life imprisonment.

I.

We initially address Floyd's argument that he is entitled to a new trial because the trial court erred by allowing the prosecution to introduce evidence of other crimes he had committed for the purpose of impeaching his testimony. This argument lacks merit. The decision as to whether to admit such evidence is within the sound discretion of the trial judge, Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), and we perceive no such abuse of discretion here.

When the prosecutor cross-examined Floyd, the following exchange occurred respecting a prosecution witness's testimony that Floyd had shown her a pistol and stated that he shot the murder victim with it:

Q. All right. Let's get to Charmaine. You never showed that gun to Charmaine, of course, right?

A. I never carry a gun. I don't have a gun to show anybody.

Q. You never carried a gun?

A. I never carried a gun. [N.T. 2/19/81, pp. 71-72].

Thus, of his own accord, Floyd went beyond simply denying having shown a gun to the prosecution witness, and made the sweeping claim that he had never carried a gun, thereby implying that it was not characteristic of him to carry or use guns. The trial judge subsequently permitted the prosecutor to introduce, for the limited purpose of impeaching Floyd's testimony, Floyd's prior weapons offenses--violating the Uniform Firearms Act, carrying concealed weapons, and wantonly pointing a firearm.

Floyd contends that the admission of other crimes evidence was erroneous because Floyd's denial was unfairly construed broadly. We are unable to deduce, however, that the trial judge, who actually heard the testimony transcribed in the cold record before us, erred in his interpretation, and we must, therefore, reject this argument. ¹

II.

Floyd also contends that he is entitled to a new trial because his attorney failed to provide him with effective assistance, as guaranteed him under the Sixth Amendment to the United States Constitution. ²

Because the law presumes that counsel was effective, the burden of establishing ineffectiveness rests upon the appellant. Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981). "[B]efore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it." Id. at 233, 431 A.2d at 234 (quoting Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967)).

Floyd argues that his attorney was ineffective because he failed to object to certain prosecutorial remarks which he believes to have been improper and because he failed to press objections to other remarks during post-trial arguments as a basis for a new trial grant. We disagree. Our review of the record reveals that the prosecutor's remarks complained of were prompted by remarks of defense counsel. For example, as Floyd asserts, the prosecutor made the following remark about defense counsel:

MR. DI DONATO: Judge if I do that it's a mistrial and the jury has to be dismissed. When Mr. Berry puts on a big act ... He's expressing an opinion in front of the jury. [N.T. 2/17/81, p. 47]

The Commonwealth points out, however, as Floyd does not, that the prosecutor's remark was preceded by the following sarcasm of defense counsel at the conclusion of his cross-examination of a prosecution witness: MR. BERRY: I have no more questions of him. He can get out this courtroom and get out the city hall. (Sic) [N.T. 2/17/81, p. 47]

While we do not condone this retort or others by the prosecutor, where, as here, the prosecutor's verbal impropriety "was motivated by, and was commensurate with," that of defense counsel, such retorts do not constitute a basis for reversal of a jury verdict. Commonwealth v. Stoltzfus, 462 Pa. 62, 337 A.2d 873, 880 (1975). Commonwealth v. Gwaltney, 497 Pa. 505, 513, 442 A.2d 236, 240 (1982). Accordingly, defense counsel's failure in the present case to object to the prosecutorial retorts he himself prompted does not constitute ineffective assistance of counsel, because it is not an "unreasonable strategy," to refrain from making nonmeritorious objections. See Commonwealth v. Barren, 501 Pa. 493, 462 A.2d 233 (1983); Commonwealth v. Rawles, 501 Pa. 514, 524, 462 A.2d 619, 624 (1983).

Floyd further contends that his counsel ineffectively assisted him because he advised Floyd to testify, which advice Floyd accepted, thereby exposing himself to what proved to be damaging cross-examination. We must reject this contention, because "the decision whether or not to testify on one's own behalf rests solely on the defendant." Rawles, 501 Pa. at 523 n. 3, 462 A.2d at 624 n. 3. The record before us admits of no disagreement between Floyd and his counsel as to his testifying.

Floyd next argues that his trial counsel was ineffective because he did not interview or call as a witness Police Officer Daniel Rienckney. ³ Shortly after the murder, in a nearby location, Officer Rienckney took into custody an individual who to some degree fit the description of the murderer provided by eyewitnesses, but this individual was released after investigation. Floyd does not contend that this omission in anyway prejudiced his defense, only that it may have done so. He makes no allegation that an interview of, or testimony by, Officer Rienckney would have in any way added to the evidence presented in his defense. Thus, we must reject this contention, for one

who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which an appellate court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

Floyd lastly argues that his trial counsel was ineffective because he failed to preserve, in post-trial motions, objections to the admission of what he contends was prejudicial hearsay evidence.

The testimony of Detective Checchia that prosecuting eyewitnesses, Edgar Thomas and Walter Pernell, feared reprisal from the defendant was inadmissible hearsay. Similarly inadmissible, on hearsay grounds, was the detective's testimony that Steven Brown, an alleged eyewitness who was not called upon to testify, and Sandy DeLuca, the victim's daughter, viewed a composite sketch composed from eyewitnesses' descriptions and that Brown stated that the sketch resembled the murderer while DeLuca stated that the sketch resembled the defendant. The detective's testimony constituted inadmissible hearsay, but, in view of the overwhelming evidence against the defendant, harmless error was committed. Defendant's conviction was supported, overwhelmingly, by testimony of eyewitnesses to the murder, testimony that prior to committing the murder the defendant declared to various persons his intent to kill the victim, and testimony that a week after the murder the defendant bragged about having committed the crime. See Commonwealth v. Mehmeti, 501 Pa. 589, 596, 462 A.2d 657, 660-661 (1983).

III.

Floyd further argues that he is entitled to a new trial because of several instances of prosecutorial misconduct during summation.

One instance of misconduct as characterized by Floyd occurred when the prosecutor drew attention to the absence of testimony by an individual whose testimony had been ruled inadmissible by the trial judge, implying that the jury should draw an inference adverse to the defendant from the absence of favorable testimony by that person. This statement, however, is not cause for reversal because it was defense counsel, in his summation, who initially drew attention to the absence of that testimony, implying that the jury should draw an inference favorable to the defendant. Because we view the remarks complained of as inspired by defense counsel's own, the conduct complained of is not cause for reversal, Stoltzfus, 462 Pa. at 61-62, 337 A.2d at 882; Gwaltney, 497 Pa. at 513, 442 A.2d at 240, especially in light of the fact that the trial court carefully instructed the jury to disregard the remarks of both counsel.

Floyd also draws attention to prosecutorial comments on the defendant's credibility. Representative of that...