Com. v. Martin
| Decision Date | 02 June 1978 |
| Citation | 387 A.2d 835,479 Pa. 63 |
| Parties | COMMONWEALTH of Pennsylvania v. Calvin MARTIN, Appellant. |
| Court | Pennsylvania Supreme Court |
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Jane Greenspan, Philadelphia, for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.
Appellant, Calvin Martin, was convicted by a jury in Philadelphia of murder of the first degree. Post-verdict motions filed by trial counsel seeking an arrest of the judgment and/or a new trial were denied 1 and a sentence of life imprisonment was imposed. This appeal followed.
In this appeal Martin is represented by new counsel, that is, counsel other than trial counsel. The sole assignment of error is that trial counsel was ineffective in protecting Martin's appellate rights by failing to include in the post-verdict motion for a new trial the following six alleged trial errors: 2
(1) allowing a Commonwealth witness, one Anthony Brothers, to testify as to the alleged prior commission of a crime by Martin, involving the decedent, Jonathan Kent, which crime resulted in neither an arrest, trial, nor conviction;
(2) refusing to grant trial counsel's motion for a mistrial after the testimony of Brothers was stricken;
(3) allowing a non-medical witness to testify concerning facts which were medical in nature;
(4) receiving into evidence certain photographs depicting an automobile's condition at the time of trial, but purporting to depict the condition of the said automobile at the time of the commission of the crime, some seven months prior;
(5) the trial court's denial of appellant's request "for a binding instruction that where two inferences arising from the evidence were possible; one consistent with guilt and one with innocence, that the jury must draw that of innocence";
(6) the trial court's denial of appellant's motion to set aside the verdict based upon the allegations of coercion exerted upon one of the jurors.
In determining counsel's effectiveness, we must bear in mind the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):
"(C)ounsel'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." (Emphasis in original.)
Our initial inquiry is whether or not the issues counsel is charged with not pursuing in the post-verdict motion were of arguable merit. If we conclude the issues were 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. Hubbard, 472 Pa. 259, 276-78, 372 A.2d 687, 695-96 (1977).
In regard to Martin's first contention that trial counsel was ineffective for failing to assign as error in the post-verdict motion the trial court's allowing a Commonwealth witness, one Anthony Brothers, to testify as to prior acts of Martin, the record shows Brothers testified that Martin and three other persons came into his home and took $15.00 without his consent from his pocket at 7:30 p. m. on November 29, 1974, which was thirteen days before Kent was killed. Also present at the time of this event was Brothers' mother and Kent, the murder victim. After loading a shotgun which one of the other persons had brought into the house, Martin, according to Brothers, tried to strike him with it and a fight ensued which Kent terminated by hitting Martin with a chair.
Prior to Brothers' testimony, trial counsel had objected to the admission of such evidence. After hearing an offer of proof by the Commonwealth in camera, the trial judge allowed the testimony recounted above. Trial counsel, however, failed to assign the admission of this testimony as error in the post-verdict motion.
As a general rule, evidence that a defendant has committed another crime wholly independent and unconnected with that for which he is on trial is irrelevant and inadmissible except under special circumstances. One of the special circumstances which operates as an exception to the general rule is the case where the proffered testimony tends to establish the defendant's motive for the crime or crimes charged in the indictment on trial. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976). However, to be admissible under this exception, evidence of a distinct crime, even if relevant to motive, "must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of facts and circumstances." Commonwealth v. Schwartz, 445 Pa. 515, 522, 285 A.2d 154, 158 (1971).
In the instant case, the Commonwealth maintains that evidence of Martin and three other persons taking money from Brothers; of Martin holding a shotgun on and striking Brothers with it; and, of Kent stopping the ensuing struggle between Martin and Brothers by hitting Martin with a chair is admissible to show motive, intent, and ill-will on the part of Martin, who was charged with killing Kent a mere thirteen days after this incident. Placed in this frame of reference, we cannot say the trial court was in error when it concluded the evidence of these prior acts gave sufficient ground to believe that Kent's killing grew out of or was in some way caused by the prior incident. We conclude, therefore, that since this issue was not of arguable merit, trial counsel was not ineffective in failing to raise it in post-verdict motions. See Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 605 n.8, 235 A.2d at 353 n.8; Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975).
This motion was denied.
In the context of the instant case, since Martin succeeded in having damaging, albeit admissible, testimony stricken, and the jury instructed to disregard it, we do not see how he has been prejudiced. Evidence which is not objectionable is clearly not a ground for declaring a mistrial. See e. g., Fleischman v. Reading, 388 Pa. 183, 188-93, 130 A.2d 429, 432-34 (1957). While it is true that trial counsel did not have an opportunity to cross-examine Brothers, this was because his motion to strike Brothers' testimony was made and granted by the trial court immediately after the conclusion of Brothers' direct examination. We are unable to say that the timing of trial counsel's motion to strike was not a tactical decision. Furthermore, the trial court after striking the testimony gave a strong cautionary instruction to the jury to disregard it entirely. In view of the fact that such testimony was admissible, Martin received more than that to which he was entitled. Thus, the trial court did not abuse its discretion in refusing to grant a mistrial, Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972), and trial counsel's failure to assign this point as error in the post-verdict motion is not ineffectiveness.
Martin's third complaint is that trial counsel was ineffective for failing to raise in the post-verdict motion the alleged error that a non-medical witness testified at trial concerning facts which were medical in nature. In the course of the testimony, Anthony Paul, a firearms expert, testified for the Commonwealth as follows:
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