Commonwealth v. Reed

¶1dissenting:

¶2I respectfully dissent. After an evidentiary hearing on appellant’s amended P.C.H.A. petition alleging ineffective assistance of trial counsel, the hearing court made a general finding that counsel had not been ineffective and dismissed the petition. I would affirm. Appellant failed completely to show the ineffectiveness of counsel which he alleged in his petition.

¶3Melvin Reed, the appellant, was initially tried without a jury and found guilty of kidnapping, aggravated assault, and conspiracy following an incident in which eleven shots had been fired into the body of a person whose hands had been tied behind him with an electrical cord. A new trial was subsequently granted. The re-trial was held before the Honorable James T. McDermott and a jury, which again found appellant guilty. On direct appeal, this Court affirmed the judgment of sentence. Commonwealth v. Reed, 246 Pa.Super. 646, 372 A.2d 843 (1977). A petition for allocatur to the Supreme Court was denied; and a petition for habeas corpus was dismissed by the United States District Court for the Eastern District of Pennsylvania. Reed then filed a P.C.H.A. petition. Counsel was appointed, an amended petition was filed, and an evidentiary hearing was held. At the conclusion of the hearing, the court made a general determination that Reed had failed to show that trial counsel was ineffective and denied relief.

¶4The burden of establishing that trial counsel had been ineffective was on appellant. Commonwealth v. Bundridge, *484268 Pa.Super. 1, 3, 407 A.2d 406, 408 (1979); Commonwealth v. Klaric, 263 Pa.Super. 286, 290, 397 A.2d 1212, 1213 (1979); Commonwealth v. Sweitzer, 261 Pa.Super. 183, 191, 395 A.2d 1376, 1380 (1978). In order to establish that counsel had been ineffective for failing to call a witness, appellant was required to prove not only that counsel had been informed of the witness’ identity, but that the witness’ testimony would have been helpful to his case. Commonwealth v. Adams, 465 Pa. 314, 321, 350 A.2d 412, 416 (1976); Commonwealth v. Williams, 274 Pa.Super. 464, 472-473, 418 A.2d 499, 503-504 (1980); Commonwealth v. Yarbough, 248 Pa.Super. 356, 361-362, 375 A.2d 135, 138 (1977).

¶5Appellant contended that trial counsel had been ineffective for failing to interview pre-trial and call as a witness at trial the notary who had taken a pre-trial affidavit from the victim. The record discloses affirmatively that the victim’s statement was used extensively at trial by defense counsel to cross-examine the victim. Thus, it was unnecessary to call the notary to authenticate the statement; and appellant has not proved that the notary had any other relevant information.

¶6In order to prove that counsel had been ineffective for failing to object to closing arguments by the prosecuting attorney, appellant was required to establish arguable merit in the objection which counsel failed to make. A review of the record establishes that the prosecutor’s comments were well within the bounds of legitimate argument and, unobjectionable.1 Counsel cannot be held ineffective if the action *485he failed to take would have been frivolous or fruitless. Commonwealth v. Wilson, 482 Pa. 350, 353, 393 A.2d 1141, 1143 (1978); Commonwealth v. Ashley, 277 Pa.Super. 287, 291, 419 A.2d 775, 777 (1980).

¶7Appellant’s contention that trial counsel was ineffective was so completely devoid of merit in this case that I would accept the general finding of the hearing court and affirm its order denying relief.