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Commonwealth v. Ogrod12/30/2003
unsel timely objected, made the informed decision not to request a mistrial, and received a curative instruction, Appellant is not entitled to relief.
This Court has been reluctant to conclude that comments of this type constitute reversible error, see generally Commonwealth v. Ross, 169 A.2d 780, 787 (Pa. 1961). Even if it were possible for the jury to draw an improper inference from the comment of the prosecutor, it is clear that the trial court instructed the jury that: it could not consider arguments of counsel as evidence, that Appellant had the right not to testify, and that the jury was not to draw any inference as to what Appellant might have said had he chosen to testify. N.T. 10/7/96 at 72-74. Additionally, the curative instruction promptly followed the objection. Indeed, Appellant's attorney made his closing statement just before a 1:00 P.M. lunch recess and the trial court instructed the jury immediately after the jury returned from that recess. Id. at 69-71. The trial court thereby corrected the comment by the prosecutor. Commonwealth v. Wesley, 753 A.2d 204, 209-210 (Pa. 2000). Where, as here, defense counsel makes a tactical decision (made in consultation with Appellant) that it was in Appellant's interests to have the present jury adjudicate his guilt or innocence, and Appellant receives an appropriate curative instruction, no relief is due outside of an ineffective assistance of counsel claim.
Appellant does claim that his trial counsel was ineffective for failing to move for a mistrial when the prosecutor appeared to comment on his silence. "Trial counsel is presumed to have been effective." Commonwealth v. Fowler, 703 A.2d 1027, 1028 (Pa. 1997).
Appellant fails to overcome the presumption that counsel was effective because:
(1) the claim lacks arguable merit; (2) defense counsel had a reasonable basis not to move for a mistrial; and (3) because Appellant was not unfairly prejudiced by the comments of the prosecutor. The claim lacks arguable merit because the arguments of the prosecutor did not improperly comment on Appellant's silence. The prosecutor simply stated that Appellant had not denied his own admissions; she did not imply that the jury should infer anything improper from the silence of Appellant. As to defense counsel's reasonable basis for declining to move for a mistrial, it is clear that defense counsel stated on the record that he was making a tactical decision not to request a mistrial. N.T. 10/7/96 at 70. Defense counsel's decision reflects that he had reason to believe that it was in the best interests of his client to have this jury determine Appellant's guilt or innocence. As defense counsel was present throughout the proceedings and had the opportunity to observe the manner in which the trial was proceeding, we believe his decision to let the case go to the jury was reasonable. Finally, Appellant has also failed to show that his counsel was ineffective because the comment of the prosecutor was insufficient to create a reasonable probability that the result of the trial would have been different.
Appellant also claimed that the trial court violated his Sixth Amendment right of confrontation and the rules of evidence when the prosecutor advised the jury that Mr. Charles Green, the father of Barbara Jean's young friend, suspected that Appellant was the killer. Appellant contends that his trial attorney was ineffective for failing to object to this testimony especially because Mr. Green never testified before the jury. Brief of Appellant at 28.
What Appellant does not disclose is that the only reason the statements were accepted as evidence was that they were the admissions of Appellant to Mr. Banachowski. It
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