Com. v. Johnson

• Decision Date: 15 October 1987
• Docket Number: No. 134,134
• Citation: 532 A.2d 796,516 Pa. 407
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Vincent JOHNSON, Appellee. E.D. 1986.
• Court: Pennsylvania Supreme Court

Page 796

532 A.2d 796

516 Pa. 407

COMMONWEALTH of Pennsylvania, Appellant, v. Vincent JOHNSON, Appellee.

No. 134 E.D. 1986.

Supreme Court of Pennsylvania.

Submitted April 10, 1987.

Decided Oct. 15, 1987.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Philadelphia, for appellant.

Daniel M. Preminger, Philadelphia, for appellee.

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

OPINION OF THE COURT

PAPADAKOS, Justice.

We are asked by the Commonwealth to review the issues of whether the seven year lapse before pursuing PCHA ¹ relief constituted a waiver under the Act, and whether trial counsel was ineffective for not objecting to a confession on the allegation that it was induced because of the delay between arrest and preliminary arraignment and for not objecting to the closing statement of the prosecution.

Following the beating of the victim, the factual history of this case shows that the police requested Appellee's father to bring in his son as a suspect, then seventeen years old, for questioning. Appellee appeared with his father on November 5, 1971, at 5:35 p.m., and surrendered to the police who administered Miranda warnings in the presence of the father. Appellee then was interviewed until 6:45 p.m. with his father present, but persistently denied that he had committed the crime. Between 6:45 and 9:00 p.m. he underwent additional questioning by the authorities. At 9:00 p.m., however, Appellee made an oral admission to the police which was completed at 9:50 p.m. The oral admission was repeated to his father, who had re-entered the interrogation room and had questioned his son about the killing, although the defendant later denied this on the stand. At 10:25 p.m., detectives informed him that the victim had died earlier at 9:35 p.m. Questioning resumed the next morning, November 6, at 8:00 a.m. when the Appellee was asked, among other matters, to identify a rock which had been used to kill the victim. That interview ended at 12:15 p.m. Appellee thereafter was left alone until 4:20 p.m. At that time, he was taken to the interrogation room where he began to give a formal written inculpatory statement. This confession was completed at 8:00 p.m. and signed by the Appellee. The father was not present. The Appellee then was arraigned before a magistrate sometime after 8:00 p.m. of that second day.

At the suppression hearing on August 27, 1972, the Appellee unsuccessfully sought to suppress the oral statement. At the jury trial itself, held on March 21, 1973, a police officer was permitted to testify over a hearsay objection that he (the officer) had asked Appellee's father whether the Miranda warnings had been understood fully, and the father had replied affirmatively. Moreover, another officer was allowed to testify that he had overheard the conversation between the Appellee and his father in which the Appellee had admitted the crime. Finally, both his oral and written confessions were introduced by the Commonwealth, as well as the lengthy testimony of an eyewitness to the beating death.

Appellee was convicted of murder of the first degree and aggravated robbery. On August 8, 1973, he was sentenced to life imprisonment for murder and ten to twenty years (concurrent) for aggravated robbery.

On direct appeal to this court, his trial counsel raised inter alia the voluntariness of his written confession and the admissibility of that written statement which he alleged was induced by the delay between his arrest and preliminary arraignment. As to the first issue, we determined that the confession was voluntary because, "the evidence tended to show the absence of a coercive atmosphere surrounding appellant's statement." We also concluded that the testimony of the police officers was admissible, but that his contention that his formal statement was the product of an unnecessary delay had been waived by failure to preserve below. No objection to the oral confession was raised at trial or on direct appeal. Commonwealth v. Johnson, 457 Pa. 554, 557-559, 327 A.2d 632, 633-635 (1974) (Jones, C.J. and Eagen, J. concurred in the result; Manderino, J. did not participate). Our holding in that appeal specifically concluded that the formal statement made by the Appellee to the police was "substantially identical to the earlier oral statement."

Seven years later, on January 5, 1981, Appellee filed his first collateral appeal under the P.C.H.A. Represented by different counsel, Appellee alleged that his trial counsel was ineffective for failing to argue that the two confessions made in jail were the products of an unnecessary delay between arrest and arraignment, and for failing to object to the prosecution's closing remarks to the jury. In addition to denying the allegations of ineffective assistance, the Commonwealth's answer argued again that relief was barred by Appellee's unexplained delay constituting waiver.

The P.C.H.A. court denied the petition. The Superior Court, however, in a majority memorandum opinion with one dissent, 344 Pa.Super. 623, 495 A.2d 612, agreed with Appellee and vacated the sentence and ordered a new suppression hearing and trial with instructions that "the statements were the product of unnecessary delay." In the present appeal by the Commonwealth, the same three issues again are put forth for our review.

Initially, the Commonwealth contends that these claims for relief have been waived because of the unexplained delay in seeking PCHA relief. Mere delay, standing alone, may not be a sufficient reason to reject a petition summarily. ² The orthodox method of avoiding waiver has been to raise the claim of ineffectiveness of trial counsel at the first available opportunity. Our familiar cases have defined the first available opportunity as the moment when the defendant is represented by different counsel either on direct appeal or on collateral review. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687 (1977); Commonwealth v. Dancer, 460 Pa. 95, 100, 331 A.2d 435, 438 (1975). As applied to the facts of this case at hand, waiver will not lie because while Appellee's trial counsel represented him on direct appeal, this first P.C.H.A. petition alleging ineffectiveness is being conducted by second counsel. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977). Nor do other relevant factual circumstances exist which would merit the imposition of waiver because of any detriment to the Commonwealth. This case is properly before the Courts.

In order to comply faithfully with our case law on the subject of ineffectiveness, however, it is necessary to demonstrate at the threshold that the challenge to the conduct of trial counsel is of arguable merit and that such dereliction prejudiced the defendant. If it can be garnered from the record that the stewardship was reasonable, on the other hand, post conviction relief will be denied. Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983). Reasonableness and arguable merit are legal concepts which require that we examine trial counsel's strategy in the light of available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Without a showing of such unreasonable dereliction, the claim should be dismissed. Commonwealth v. Davis, 433 Pa. 267, 249 A.2d 766 (1969). Where it is equally clear that the allegations are baseless or meritless, there is no need for a court to go further in search of relief for the Petitioner. Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984).

A Petitioner must prove additionally that he was prejudiced by the ineffectiveness. The prejudice standard has been employed most recently in Commonwealth v. Pierce, --- Pa. ---, 527 A.2d 973 (1987). In Pierce, we determined that before relief may be granted, courts must find both an unprofessional performance which implicated the truth-finding function of the trial, as well as prejudice resulting therefrom to the defendant. The standard of review is that there must be a reasonable probability that, but for counsel's unprofessional errors, the results of the trial would have been different.

Under the present appeal, the Appellee advances two allegations against his trial counsel. First, he argues that his trial counsel failed to object at suppression and trial that both his oral and written confessions were compelled by an unnecessary delay between his arrest on November 5, 1971, and preliminary arraignment on November 6, 1971.

The applicable law at the time of his trial in March, 1973, was Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Appellee's suppression hearing and trial took place four months and eleven months, respectively, after our decision in Futch. The purpose of Futch was to prevent a deliberate postponement of the preliminary arraignment in order to induce a confession. ³ Commonwealth v. McGeachy, 487 Pa. 25, 407 A.2d 1300 (1979). Futch established a three-part test which offered relief in the form of the suppression of evidence if: 1) the delay was unnecessary; 2) prejudicial evidence was obtained during the delay; and 3) the prejudicial evidence was reasonably related to the delay. See also, Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419, 420 (1974).

Subsequent interpretations of Futch determined that there was no specific period of time which could be utilized as a measurement of "unnecessary delay." Commonwealth v. Bey, 462 Pa. 533, 341 A.2d 907 (1975); Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975); Commonwealth v. Johnson, 458 Pa. 425, 327 A.2d 618 (1974); Williams, supra; and McGeachy, supra. Indeed, the central focus of Futch was on a case-by-case evaluation to decide whether the delay was unnecessary. Justice Eagen's...