Com. v. Franklin

• Decision Date: 27 August 1990
• Citation: 580 A.2d 25,397 Pa.Super. 265
• Parties: COMMONWEALTH of Pennsylvania v. William FRANKLIN, Appellant.
• Court: Pennsylvania Superior Court

Page 25

580 A.2d 25

397 Pa.Super. 265

COMMONWEALTH of Pennsylvania v. William FRANKLIN, Appellant.

Superior Court of Pennsylvania.

Submitted May 29, 1990.

Filed Aug. 27, 1990.

John F. Stullmun, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before OLSZEWSKI, CERCONE and BROSKY, JJ.

CERCONE, Judge:

This is an appeal from an order denying appellant's petition for relief under the Post Conviction Hearing Act (the "PCHA"), 42 Pa.C.S.A. §§ 9541-9551. ¹ For the reasons set forth below, we affirm.

Appellant, William Franklin, was arrested because of an incident involving the murder of Joseph Hollis and the attempted murder of John Pickens. The facts adduced at trial, which were set forth by the lower court in an opinion filed May 24, 1983, may be summarized as follows. The relevant crimes were committed during a meeting on October 22, 1976 which occurred between two rival syndicates engaged in illegal narcotics operations, the "North Philadelphia" and "West Philadelphia" groups. The purpose of the meeting allegedly was to reconcile differences between the two syndicates which had arisen two days earlier when Hollis insulted Alfred Clark, the leader of the North Philadelphia organization, by questioning his credentials as a "real gangster" and slapping him in the face with a gun.

The meeting on October 22, 1976 was attended by approximately ten people. During the meeting, appellant and Major Tillery, a member of the North Philadelphia syndicate, drew weapons from underneath a pool table and shot Hollis and Pickens; Hollis died as a result of the shooting. Emmanuel Claitt, also a member of the North Philadelphia group, testified that he had no prior knowledge of the shooting and that he was standing by the door during the meeting to prevent anyone from entering or leaving. Based on information supplied by Claitt, appellant was arrested four years later. Claitt's evidence was given in return for leniency from the Commonwealth relating to other open cases.

Following a trial which began on December 1, 1980, a jury found appellant guilty of first degree murder, ² possession of instruments of crime generally, ³ criminal conspiracy, ⁴ and aggravated assault. ⁵ Appellant's post-verdict motions were filed and argued by trial counsel. Subsequently, appellant raised allegations of ineffectiveness and new counsel assumed representation. Appellant was given additional time to file and brief post-trial motions nunc pro tunc. However, following a second hearing, all of appellant's post-verdict motions were denied. On July 7, 1982, appellant was sentenced to serve life imprisonment for the murder conviction, concurrent terms of five (5) to ten (10) years for criminal conspiracy and two and one-half (2 1/2) to five (5) years on the weapons charge, as well as a consecutive term of five (5) to ten (10) years for aggravated assault. This judgment of sentence was affirmed on direct appeal by Commonwealth v. Franklin, 339 Pa.Super. 615, 488 A.2d 1163 (1985). Allocator was denied by the Pennsylvania Supreme Court on June 24, 1985. ⁶ In an opinion filed December 22, 1989, the lower court indicates that appellant also filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The lower court states that this petition was withdrawn on June 6, 1986.

On June 24, 1986, appellant filed a petition under the PCHA and new counsel was appointed to write a brief for appellant. Prior to the hearing conducted on appellant's claims, new counsel was once again appointed. Following the hearing, the lower court held its decision so that additional briefs could be submitted. Ultimately, the lower court denied collateral relief to appellant and the instant timely appeal followed which presents five questions for our consideration:

1. Was William Franklin denied the right to the effective assistance of counsel because of his trial counsel's unreasonable failure to secure and present the testimony of an exculpatory witness?

2. Was Franklin deprived of his constitutional right to present a defense because he was prevented from introducing vital evidence at trial, namely an exculpatory statement made by the victim of the shooting?

3. Was Franklin deprived of the right to confrontation because he was not permitted to cross-examine the Commonwealth's primary witness on the contents of an exculpatory statement made by the victim of the shooting?

4. Did the trial judge err in failing to charge the jury that Emmanuel Claitt, the sole witness against Franklin, was an accomplice to the crime with which Franklin was charged?

5. Was Franklin repeatedly denied effective assistance of counsel because both trial and appellate counsel neglected to pursue admission into evidence of the victim's exculpatory statement and to request an accomplice charge?

We shall address appellant's claims seriatim, noting initially that we are governed by a narrow scope of review when examining a PCHA court's grant or denial of relief. Commonwealth v. McClucas, 378 Pa.Super. 202, 548 A.2d 573 (1988). "We will not disturb the findings of the PCHA court unless they have no support in the record." Id. at 206, 548 A.2d at 575.

It is well settled that the burden of establishing ineffective assistance of counsel rests upon the appellant because counsel's stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Appellant's obligation is to demonstrate both that "the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result." Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973, 976 (1987) (emphasis in original). The initial inquiry in an ineffectiveness claim is always "whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim." Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989). If this threshold is met, it must next be determined that the particular course followed by counsel had no reasonable basis designed to effectuate his client's interests. Id. The final inquiry is to establish the precise manner in which counsel's commission or omission prejudiced the appellant. Id. In making assertions of ineffectiveness, an appellant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective because the appellate courts will not consider such claims in a vacuum. Id.; Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). We note additionally that counsel will not be deemed ineffective for failing to predict a change in the law. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant's first contention is that trial counsel was ineffective for failing to secure at trial the testimony of one of the victims, John Pickens, who allegedly would have stated that appellant "did not do the shooting." To obtain relief on an ineffectiveness claim based upon former counsel's failure to call a witness, appellant is required to establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; (4) the witness was prepared to cooperate and testify for appellant at trial; and (5) the absence of the testimony prejudiced appellant so as to deny him a fair trial. Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1986). Even assuming, arguendo, that appellant's proffer has met requirements (1), (3), and (5), ⁷ testimony at appellant's PCHA hearing shows unequivocally that Pickens could not be located at the time of appellant's trial, that he was not prepared to cooperate with the defense, and that he was unwilling to testify on appellant's behalf.

Trial counsel explained at the PCHA hearing that he had contacted counsel for Mr. Pickens, Joseph Santiguida, Esquire, regarding the possibility of having Mr. Pickens testify at appellant's trial. N.T. 10/5/88 at 9-10. Mr. Santiguida informed trial counsel that because of Mr. Pickens' involvement in the events underlying the criminal charges filed against appellant, he would have to advise his client not to testify for appellant. Id. at 10. A witness who chooses to invoke his Fifth Amendment right not to testify is "unavailable." See, e.g., Commonwealth v. Rodgers, 472 Pa. 435, 452-457, 372 A.2d 771, 779-781 (1977) (per Roberts, J., with one Justice concurring and two Justices concurring in the result); Commonwealth v. Bellacchio, 296 Pa.Super. 468, 474-475, 442 A.2d 1147, 1149-1150 (1982). As the trial court was not required to determine whether an attempt by Mr. Pickens to assert his Fifth Amendment rights was justified, we are not now in a position to rule that the witness was "unavailable" in this sense. ⁸ However, under Commonwealth v. Petras supra, we need merely consider whether the record indicates that the potential witness was physically available and whether he had shown that he was prepared to cooperate and was willing to testify for appellant at trial.

The record discloses that Mr. Pickens had apparently fled the jurisdiction at the time of appellant's trial. Trial counsel indicated to the lower court at the hearing on appellant's post-trial motions that he had made extensive, albeit unsuccessful, efforts to locate Mr. Pickens in late 1980. N.T. 4/7/81 at 9. The witness could not be reached at his last known address, the home of his mother. See Exhibit D-2. The record certified on appeal contains a deposition taken on February 19, 1988, in which Mr. Pickens' mother, Delores Pickens, stated that her son has not lived with her since some time in the late 1970's, that she has not known...