HomeMy WebLinkAbout96-0077 CriminalCOMMONWEALTH
EDWARD DILLIGARD, '
III, '
Defendant '
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-0077 CRIMINAL TERM
IN RE: DEFENDANT'S POST CONVICTION RELIEF ACT PETITION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this [~lt~ay of December, 1999, upon consideration of Defendant's
petition under the Post Conviction Relief Act, following a hearing, and for the reasons
stated in the accompanying opinion, the petition is denied.
BY THE COURT,
.~/Wesley Oler, ~)J. ff '
Jaime M. Keating, Esq.
Chief Deputy District Attorney
Darrell C. Dethlefs, Esq.
3805 Market Street
P.O. Box 368
Camp Hill, PA 17001-0368
Court-appointed attorney
for Defendant
COMMONWEALTH
Vo
EDWARD DILLIGARD,
III,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-0077 CRIMINAL TERM
IN RE: DEFENDANT'S POST CONVICTION RELIEF ACT PETITION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., December 16, 1999.
In this criminal case, Defendant was found guilty following a jury trial of robbery
and conspiracy to commit robbery,l He received the mandatory minimum sentence on
the robbery charge of five to ten years imprisonment, and a concurrent standard guideline
range sentence of one to two years imprisonment on the conspiracy charge.2 No appeal
was filed from the judgment of sentence)
For disposition at this time is a petition filed by Defendant under the Post
Conviction Relief Act.4 The petition is based upon allegedly inadequate representation of
trial counsel by reason of (a) counsel's failure to file a motion to dismiss the charges due
to the absence of a prima facie case at the preliminary hearing and (b) counsel's failure to
follow Defendant's purported instruction to file an appeal from the judgment of
~ See Order of Court, May 17, 1996.
2 Order of Court, June 25, 1996; see Act of December 30, 1974, P.L. 1052, {}1, as
amended, 42 Pa. C.S. {}9712(a) (applicable mandatory sentencing law).
3 N.T. 10, P.C.R.A. Hearing, July 29, 1999.
4 Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. {}{}9541 etseq.
sentence.5 The remedy requested for the allegedly inadequate representation is a
reinstatement of Defendant's appellate rights.6
A hearing on Defendant's petition was held on July 29, 1999. For the reasons
stated in this opinion, the petition will be denied.
STATEMENT OF FACTS
As the result of an armed robbery at a gas station on the outskirts of the Borough
of Carlisle on Wednesday, January 10, 1996, Defendant was charged with robbery and
conspiracy to commit robbery. A preliminary hearing was held on the matter a ~veek
later.
At the preliminary hearing, the victim of the robbery, an attendant at the station,
testified that on the occasion in question, at about 9:00 p.m., two individuals, one of
whom had a silver handgun, robbed him of currency which he had collected from
customers and which he was keeping on his person.7 The money had been in two wads--
one in his right pocket, consisting of one and five dollar bills, and the other in his left
pocket, consisting often and twenty dollar bills, according to his testimony.8
The attendant described the individuals as black males, one wearing a blue and
gray Georgetown Bulldogs hooded jacket and being between 5' 7" and 5' 8" in height,
and the other wearing a slightly-below-the-waist-length, black leather jacket and being
between 5' 8" and 5' 9" in height.9 The robbers got into a small, blue, four-door
Japanese car and started to drive away, according to his testimony,l°
5 Defendant's Motion for Post Conviction Collateral Relief, at 3.
6 Id., at 5; N.T. 3, P.C.R.A. Hearing, July 29, 1999.
The primary focus of Defendant's counsel at the hearing under the Post
Conviction Relief Act was the alleged failure of trial counsel to comply with Defendant's
purported instruction to file an appeal from the judgment of sentence.
7 N.T. 5-8, 19, Preliminary Hearing, January 17, 1996.
8 N.T. 8, Preliminary Hearing, January 17, 1996.
9 N.T. 10, 21-22, Preliminary Hearing, January 17, 1996.
~0 N.T. 8-9, Preliminary Hearing, January 17, 1996.
2
The attendant testified that the vehicle lost traction on ice at the station exit, and
one of the men began firing shots at him after he had approached to a distance of about
50 feet.TM With the vehicle pointing in the direction of the interior of the borough, the
attendant dropped to the ground to avoid the gunfire and the vehicle departed, according
to his testimony. 12 The attendant stated that he then went into the station and reported the
crime to authorities by telephone.~3
The owner of the gas station testified that, according to his calculations, $268.00
had been stolen in the robbery.TM A patrolman with the Borough of Carlisle15 testified
that at about 9:22 p.m., he heard a dispatch as to the robbery while responding to a
domestic dispute in his police vehicle.16 He stated that the dispatch included a
description of the getaway vehicle as a small, blue four-door car with two black male
occupants. ~ 7
Within thirty seconds of the dispatch, at the intersection of Pitt and High Streets in
the borough, the officer spotted a small, blue four-door car with a black male driver,
according to the officer's testimony.18 This location, the officer testified, was within ten
blocks of the gas station in question.~9 The officer stated that the driver did a double take
at the sight of the police cruiser and continued to stare at it as he (the driver) turned away
from the cruiser at the intersection, proceeding south on Pitt Street? As he followed the
~1 N.T.
~2 N.T.
13 N.T.
8-10, Preliminary Hearing, January 17, 1996.
8-11, Preliminary Hearing, January 17, 1996.
11, Preliminary Hearing, January 17, 1996.
14 N.T. 24-25, Preliminary Hearing, January 17, 1996.
15 The officer was David Smith.
16 N.T. 28-29, Preliminary Hearing, January 17, 1996.
17 N.T.
18 N.T.
19 N.T.
20 N.T.
29, Preliminary Hearing, January 17, 1996.
18, 29, Preliminary Hearing, January 17, 1996.
39, Preliminary Hearing, January 17, 1996.
29, Preliminary Hearing, January 17, 1996.
3
vehicle, the officer testified, he observed furtive movements on the part of the passenger
in the vehicle and, at an intersection, the car's direction of travel conflicted with its turn
signal indicator.2~
At another intersection, the car stopped after discontinuing an illegal turn into a
one-way street and the two occupants bolted from the vehicle on foot, according to the
officer's testimony? He stated that he pursued the driver (through ~vaist-deep snow)
and, with the help of a canine officer, captured the individual--who was the Defendant
herein.23 A search of Defendant's person yielded two bundles of cash, one comprised of
one and five dollar bills and the other of ten dollar bills, totaling $250.00, according to
the officer's testimony.24 He stated that the money smelled of gasoline, and had been
concealed in the crotch of Defendant's boxer shorts?
The car was identified by the attendant as the vehicle involved in the robbery,
according to testimony of the attendant and the police officer.26 The officer testified that
the vehicle contained a black, waist-length leather coat and a hooded, Bulldogs team
jacket.27
21 N.T.
22 N.T.
23 N.T.
24 N.T.
25 N.T.
26 N.T.
29-30, Preliminary Hearing, January 17, 1996.
30-31, Preliminary Hearing, January 17, 1996.
31-34, Preliminary Hearing, January 17, 1996.
35, Preliminary Hearing, January 17, 1996.
35, Preliminary Hearing, January 17, 1996.
23, 36, Preliminary Hearing, January 17, 1996.
According to the officer's testimony, another witness also identified the car as
having been involved in the incident. Id. at 36. The attendant testified that a customer
pulled into the station during the course of the robbery, but it is not clear from the
preliminary hearing transcript whether this is the witness being referred to. Id. at 7-8, 20.
According to the attendant's testimony, he also identified a jacket shown to him by
police as one that was worn by a perpetrator in the robbery, but it is not clear from the
preliminary hearing transcript what jacket is being referred to. Id. at 23.
27 N.T. 36, Preliminary Hearing, January 17, 1996.
4
At the conclusion of the testimony at the preliminary hearing, the district justice28
concluded that a prima facie case had been established by the Commonwealth with
respect to the charges? She consequently bound the case over for trial?
On May 1, 1996, Defendant filed an omnibus pretrial motion in the form of a
motion to suppress certain oral communications to police at the district justice's office at
the time of the preliminary hearing, unpreceded by Miranda warnings. One such
communication, to the police officer who had pursued him, was to the effect that the
police had saved his life on the evening of the robbery because he had been on cocaine.31
The other communication, to this officer and to a Carlisle Borough detective, consisted of
questions as to whether police had found the gun.32 Neither form of communication was
evoked by police questioning.33
The predicate for Defendant's motion to suppress the statements was that they
resulted from the functional equivalent of interrogation? In this regard, however, the
only basis for Defendant's contention was that the detective, in the course of taking
charge of Defendant at the county jail for purposes of transporting him to the preliminary
hearing, had predicted a surprise for him at the hearing.35 The detective testified at the
hearing on Defendant's omnibus pretrial motion that his comment at the jail had not been
intended to elicit any response,36 and, as noted above, the communications sought to be
28 The district justice was the Honorable Paula Correal.
29 N.T. 40, Preliminary Hearing, January 17, 1996.
30 N.T. 40, Preliminary Hearing, January 17, 1996.
31 N.T. 5-6, Hearing on Defendant's omnibus pretrial motion, May 15, 1996.
32 N.T. 8, Hearing on Defendant's omnibus pretrial motion, May
Hearing on Defendant's omnibus pretrial motion, May 15, 1996.
33 N.T. 8, Hearing on Defendant's omnibus pretrial motion, May
Hearing on Defendant's omnibus pretrial motion, May 15, 1996.
34 Defendant's Omnibus Pretrial Motion, paragraph 13.
35 N.T. 5-6, Hearing on Defendant's omnibus pretrial motion, May 14, 1996.
36 N.T. 8, Hearing on Defendant's omnibus pretrial motion, May 14, 1996.
14, 1996; N.T. 6,
14, 1996; N.T. 6,
5
suppressed were made at a later time and different location. Based upon the evidence
presented at the hearing, the suppression court denied Defendant's motion to suppress.37
Defendant was found guilty following a jury trial of robbery in ¥iolation of
Sections 3731(a)(1)(ii)38 and 3731(a)(1)(iv)39 of the Crimes Code and conspiracy to
commit those forms of robbery.4° The concurrent sentences imposed, as previously
noted, were five to ten years imprisonment for robbery and one to txvo years
imprisonment for conspiracy.
Defendant's Post Conviction Relief Act petition sub judice was filed on January
28, 1997. Pursuant to Defendant's request in the petition for appointment of counsel,
Darrell C. Dethlefs, Esq., was appointed by order of court dated January 30, t997. The
order requested counsel to notify the court at such time as a hearing was desired on the
petition and any amendment thereto.4~ A hearing was requested on April 12, 1999.42
The Post Conviction Relief Act hearing was held on July 29, 1999. At the
hearing, Defendant's counsel indicated that the focus of the hearing xvould be on the
purported failure of trial counsel to file a direct appeal as requested by Defendant, and
37 N.T. 9, Hearing on Defendant's omnibus pretrial motion, May 15, 1996. The
suppression court judge was the Honorable Kevin A. Hess.
38 Under this provision, "[a] person is guilty of robbery if, in the course of committing a
theft, he ... threatens another with or intentionally puts him in fear of immediate serious
bodily injury .... "Act of December 6, 1972, P.L. 1482, 31, as amended, 18 Pa. C.S.
§3701(a)(1)(ii). This form of robbery is a felony of the first degree. Id. §3701(b).
39 Under this provision, "[a] person is guilty of robbery if, in the course of committing a
theft, he ... inflicts bodily injury upon another or threatens another with or intentionally
puts him in fear of immediate bodily injury .... "Act of December 6, 1972, P.L. 1482,
31, as amended, 18 Pa. C.S. §3701(a)(iv). This form of robbery is a felony of the second
degree. Id. §3701(b).
40 See Verdict Slips, May 17, 1996.
4~ Order of Court, January 30, 1997.
42 Defendant's Motion for a Hearing on His PCRA Petition, filed April 12, 1999.
that Defendant might also wish to raise the issue of his counsel's failure to file a pretrial
motion to dismiss the charges.43
At the hearing, Defendant testified that following his sentence he had asked his
trial counsel to file an appeal on the ground that the charges should have been dismissed
at the preliminary hearing stage.44 However, the testimony of Defendant's trial counsel
was not consistent with his in this respect.
Defendant's trial counsel, a member of the Cumberland County Public Defender's
Office since 199145 and an experienced trial attorney,46 testified that Defendant's
expressed concern following sentence was in having the sentence lowered and that, after
being told that the sentence imposed was a mandatory minimum sentence, he had
indicated no interest in appealing. Her testimony included the following excerpts:
Q The case went to trial, and Mr. Dilligard was convicted.
Subsequent to the conviction, he had asked you to file an appeal, is
that correct?
A He wanted to have his sentence lowered.
Q Did he ask you to file an appeal in the case?
A He wanted to have his sentence lowered. I told him the
procedure would be to first file a motion in front of the sentencing
judge. He wanted to get his sentence lower. I told him that this case
involved a mandatory sentence, which meant the lowest sentence he
could get would be a five-year mandatory minimum; and that even if
the judge wanted to or found any mitigating factors, he could not
lower that sentence, because the Commonwealth had served notice of
their intent to seek the mandatory sentence. I explained that to him.
He said, all right then. That was the last I had heard from him
regarding any type of appeal.47
43 N.T. 3-4, P.C.R.A. Hearing, July 29, 1999.
44 N.T. 23, P.C.R.A. Hearing, July 29, 1999.
45 N.T. 10, P.C.R.A. Hearing, July 29, 1999.
46 N.T. 10-11, P.C.R.A. Hearing, July 29, 1999.
47 N.T. 7, P.C.R.A. Hearing, July 29, 1999.
Q Now, you said that you talkcd to the Defendant at the
prison, and he wanted you to file, ~vhat was it, a motion to modify the
sentence?
A I don't think that was his wording. }te wanted to have his
sentence lowered--or wanted to appeal so he could get his sentence
lowered. I explained to him that, procedurally, you would file
something in front of the judge initially to give the judge an
opportunity to make a decision on whether or not they're going to
modify the sentence. Then I explained to him that his sentence could
not get any lower than it already is. He received [the] mandatory
minimum, and, actually, the lowest maximum he could receive, also.
Q So, the only reason he wanted to appeal the case was to get
a lower sentence?
A Yes.
Q There weren't any trial issues or pretrial issues that he
wanted to appeal before the Superior Court?
A No. If he had, I would have filed something.48
Q You ... explained to him the procedure which it would be
to modify that sentence, is that right?
A Yes.
Q And that, since it was a mandatory, the judge could, by
law, give no less than the five to ten years, is that right?
A Yes. When I explained that to him, he said he understood
and said, okay then.
Q And told you not to pursue it?
A Yeah. He didn't want to pursue it anymore.49
Q
appeal?
A
[I]f he would have requested it, you would have filed the
Absolutely?
48 N.T. 14, P.C.R.A. Hearing, July 29, 1999.
49 N.T. 16, P.C.R.A. Hearing, July 29, 1999.
50 N.T. 16, P.C.R.A. Hearing, July 29, 1999.
8
Q Then you explained to him the procedure for requesting a
sentence modification, correct?
A Yes.
Q It's your testimony that he then withdrew his request for an
appeal or modification?
A Yes, when I explained to him that his sentence could not
get any lower than it already was.
Q And he verbally communicated to you that he was
withdrawing that request for an appeal?
A He didn't say withdrawing his request for appeal. No, he
didn't use those words.
Q What words did he use?
A When I explained to him the procedure for filing the
motion to modify, that he had a five-year mandatory minimum, that
the judge could not lower his sentence anymore, he said, okay then,
never mind.5~
With respect to her failure to file a pretrial motion to dismiss the charges on the
ground that the Commonwealth had failed to establish a prima facie case at the
preliminary hearing, Defendant's trial counsel indicated in her testimony that she had not
believed such a motion would be meritorious. "I would have been thinking that they had
enough to get past the preliminary hearing stage at that point," she testified. "Whether or
not they had enough for reasonable doubt is a different issue.''52
With respect to Defendant's suppression motion, his trial counsel testified that she
had doubted that the motion would be successful.53 She indicated further that she felt that
the suppression court's view of the nature of the police conduct in question involved a
factual determination, that the court's conclusion was supported by the record, that an
appeal on the suppression issue would have lacked merit, and that Defendant had not
52 N.T. 18, P.C.R.A. Hearing, July 29, 1999.
52 N.T. 21, P.C.R.A. Hearing, July 29, 1999.
53 N.T. 8, P.C.R.A. Hearing, July 29, 1999.
9
suggested an appeal on that issue.54 It may be noted, in addition, that no evidence was
presented at the Post Conviction Relict' Act Hearing that the statement concerning
cocaine use had been admitted at the trial,ss
In its capacity as fact-finder, the court found the testimony of Defendant's trial
counsel to have been entirely credible. Finally, in further summary of the testimony at
the Post Conviction Relief Act hearing, it is noted that Defendant addressed the issue of
his guilt or innocence at the hearing; he testified that he had been the victim of innocent
circumstances which resulted in his occupancy of the vehicle involved in the robbery, his
possession of stolen money, and his flight from policefi6 Defendant had not testified at
the trial,s?
At the conclusion of the P.C.R.A. hearing, the court took the matter under
advisement? A brief was submitted on behalf of Defendant on August 26, 1999. The
brief argued that collateral relief in the form of a reinstatement of his direct appellate
rights should be accorded Defendant on the basis of ineffective assistance of trial counsel,
in that the counsel disregarded his instruction to file an appeal from the judgment of
sentence, that such conduct had no reasonable basis, and that prejudice resulted to
Defendant from counsel's omission in the form of a forfeiture of review of the
suppression court's ruling.59
DISCUSSION
Statement of Law
Ineffective assistance of counsel. "It is by now axiomatic that a defendant in a
criminal case is entitled to effective representation at trial." Commonwealth v. Collins,
54 N.T. 12-13, P.C.R.A. Hearing, July 29, 1999.
55 See N.T. 13, P.C.R.A. Hearing, July 29, 1999.
56 N.T. 25-26, P.C.R.A. Hearing, July 29, 1999.
57 N.T. 24, P.C.R.A. Hearing, July 29, 1999.
58 N.T. 34, P.C.R.A. Hearing, July 29, 1999.
10
519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to a claim of ineffective
assistance, however, "Pennsylvania courts presume that an accused's cou~sel is effective
and place the burden of proving ineffectiveness on the convicted del~ndant." Packel &
Poulin, Pennsylvania Evidence 148 (2d ed. 1998).
The Pennsylvania Supreme Court has stated a general rule for the analysis of a
claim of ineffective assistance of counsel:
The petitioner must ... show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
This requires the petitioner to show: (1) that the claim is of arguable
merit; (2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) that, but for the errors and admissions of
counsel, there is a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, , 724 A.2d 326, 333 (1999). It has often
been stated that a "defendant is not entitled to and cannot realistically expect to receive a
perfect trial but only a fair trial." Commonwealth v. Todt, 318 Pa. Super. 55, 69, 464
A.2d 1226, 1233 (1983).
"[C]ounsel cannot be found ineffective for failing to follow a futile course of
action .... "Commonwealth v. Schultz, 707 A.2d 513, 517 (Pa. Super. Ct. 1997). As a
general rule, an attorney's decision not to pursue a frivolous issue does not constitute
inadequate representation. See Commonwealth v. Harvey, 365 Pa. Super. 296, ,529
A.2d 516, 518 (1987).
Effect of failure of counsel to file appeal as requested by defendant. With respect
to the effect of an attorney's failure to file a requested direct appeal in a criminal case, the
Pennsylvania Supreme Court has recently enunciated the following rule:
[W]e hold that, where there is an unjustified failure to file a
requested direct appeal, the conduct of counsel falls beneath the range
of competence demanded of attorneys in criminal cases, denies the
5°Memorandum of the Defendant Edward Dilligard, III in Support of His PCRA Petition,
at 1-3.
11
accused the assistance of counsel guaranteed by the Sixth Amendment
to the United States Constitution and Article I, Section 9 of the
Pennsylvania Ccmstitution, as well as the right to direct appeal under
Article V, Section 9, and constitutes prejudice for purposes of Section
9543(a)(2)(ii) [of the Post Conviction Relief Act].
Therefore, in such circumstances, and where the remaining
requirements of the PCRA are satisfied, the petitioner is not required
to establish his innocence or demonstrate the merits of the issue or
issues which would have been raised on appeal.
Commonwealth v. Lantzy, __ Pa. , ,736 A.2d 564, 572 (1999).
Requisites for prima facie case at preliminary hearing stage. The meaning of a
prima facie case for purposes of a preliminary hearing has been explained by the
Pennsylvania Superior Court as follows:
The quantity and quality of evidence presented ... should be such that
if presented at trial in court, and accepted as true, the judge would be
warranted in allowing the case to go to the jury. The
Commonwealth's burden at a preliminary hearing is to establish at
least prima facie that a crime has been committed and that the accused
is the one who committed it. This means that at a preliminary
hearing, the Commonwealth must show the presence of every element
necessary to constitute each offense charged and the defendant's
complicity in each offense. Proof, beyond a reasonable doubt is not
required, nor is the criterion to show that proof beyond a reasonable
doubt is possible if the matter is returned for trial. However, proof,
which would justify a trial judge submitting the case to the jury at the
trial of the case, is required. Inferences reasonably drawn from the
evidence of record which wouM s~tpport a verdict of guilty are to be
given effect, and the evidence must be read in the light most favorable
to the Commonwealth's case ....
Commonwealth v. Fowlin, 450 Pa. Super. 489, 504, 676 A.2d 665, 673 (1996) (citations
omitted) (emphasis added).
Suppression of communications of accused due to absence of Miranda warnings.
Communications of a person in custody to police may be subject to suppression where
they are not preceded by Miranda warnings. Commonwealth v. Johnson, 556 Pa. 216,
727 A.2d 1089 (1999). However, communications which are volunteered are generally
12
not considered to be within the scope of this rule.
66, 720 A.2d 711 (1998).
The Pennsylvania Supreme Court has
distinction in the following terms:
See Commonwealth v. Baez, 554 Pa.
discussed the principle underlying this
[T]his court has reviewed statements obtained as a result of
custodial interrogations to determine whether the defendant
knowingly, intelligently and voluntarily waived his Miranda rights
and whether defendant voluntarily gave the statement used at trial
over his objection. However, the prerequisite for both inquiries
remains a custodial interrogation. Thus, we have held a defendant's
statements are admissible if... not made in response to police conduct
calculated to, expected to, or likely to evoke admissions. If the
statement is given freely and voluntarily without any compelling
influences, it is admissible notwithstanding the lack of Miranda
warnings.
Commonwealth v. Bracey, 501 Pa. 356, 366-367, 461 A.2d 775, 780 (1983) (emphasis
added).
Application of Law to Facts
With respect to Defendant's claim of ineffective assistance of trial counsel based
upon an alleged failure of counsel to follow Defendant's instruction to file a direct
appeal, the court has resolved the factual dispute involved in the claim adversely to
Defendant. It credited the testimony of trial counsel that Defendant had not pursued the
matter of an appeal after being advised that the mandatory nature of the sentence imposed
foreclosed the possibility of a reduction of sentence. For this reason, the rule of
Commonwealth v. Lantzy, supra, is not applicable to this aspect of Defendant's claim,
and any relief based upon the absence of an appeal must be premised upon the usual
prerequisites under the Post Conviction Relief Act for relief arising out of inadequate
representation.
To the extent that Defendant's claim of ineffective assistance of trial counsel is
based upon counsel's failure to pursue a motion to dismiss the charges against him due to
the absence of a prima facie case at the preliminary hearing level, the court is unable to
find that the claim is of arguable merit. In view of the rule that a determination of this
13
issue requires that the evidence be read in the light most favorable to the Commonwealth,
and that thc Commonwealth be given the benefit of all reasonable inferences which
would support a verdict of guilty, and in view of the testimony summarized above from
the preliminary hearing, a motion contending that the prosecution had not presented
sufficient evidence at the hearing as to the elements of the crimes of robbery and
conspiracy and as to Defendant's complicity in the crime to warrant submission of the
case to a jury xvould have been untenable. Adequate representation, as noted above, does
not compel the pursuit of unmeritorious issues.
To the extent that Defendant's claim of ineffective assistance of trial counsel is
based upon counsel's failure to pursue the issue of suppression beyond the adverse ruling
of the suppression judge, the court is again unable to find that the claim is of arguable
merit. The evidence presented at the suppression hearing did not compel a finding that
the communications of Defendant to police were the result of interrogation or other
conduct calculated to, expected to or likely to evoke admissions. Again, adequate
representation does not compel the pursuit of unmeritorious issues.
In addition, any argument that the suppression matter can be considered a
significant factor in terms of the outcome of the case is dubious. The record of the Post
Conviction Relief Act hearing contains no support for the proposition that the declaratory
statement sought to be suppressed by Defendant was utilized by the Commonwealth at
trial, and his inquiry to police a week after the offense as to whether the weapon used in
the robbery had been found fell far short of constituting an admission to his involvement
in the crime. In this further sense, the degree of prejudice necessary to elicit relief on the
basis of ineffective assistance of counsel is lacking on this point.
For the foregoing reasons, the following order of court will be entered:
ORDER OF COURT
AND NOW, this 16th day of December, 1999, upon consideration of Defendant's
petition under the Post Conviction Relief Act, following a hearing, and for the reasons
14
stated in the accompanying opinion, the petition is denied.
BY THE COURT,
/s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Jaime M. Keating, Esq.
Chief Deputy District Attorney
Darrell C. Dethlefs, Esq.
3805 Market Street
P.O. Box 368
Camp Hill, PA 17011
Court-appointed attorney
for Defendant
15