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Commonwealth v. Ogrod12/30/2003
itness in exchange for his testimony. Other evidence indicates that there was no preconceived plan because Mr. Banachowski had difficulty contacting authorities. In fact, Mr. Banachowski first wrote a letter to an Assistant District Attorney in January of 1995, but received no reply. It was not until later that year when Mr. Banachowski wrote the second letter to District Attorney Lynne Abraham, in which he explained that he was disgusted with the violent acts Appellant claimed to have perpetrated against Barbara Jean, that the Commonwealth contacted him.
All evidence leads to the conclusion that the witness testified against Appellant because the witness was disgusted with Appellant and was concerned for the safety of other children because the witness himself had a young daughter. N.T. 10/4/96 at 23. These facts differ markedly with those involved in Franciscus, the case upon which Appellant relies, where the confession was stricken because: (1) police admitted that they made payments into the informant's prison account; (2) police provided the informant with the home phone number of one of the officers; (3) the informant testified that he was working on the case with authorities; and (4) no fewer than four State Troopers testified on behalf of the informant at his sentencing hearing. Id. at 1114-1115. Because Appellant wholly fails to present facts, which, if known to his trial attorney, would have made it reasonable for the attorney to have moved to suppress the testimony, this claim of ineffective assistance of counsel must fail.
Defense counsel also testified at the post-sentencing hearing as to why he did not object to the testimony of Mr. Banachowski and that his strategy at the second trial was to show the inconsistencies between Appellant's statement to the police and the purported statement to his fellow inmate. N.T. 12/20/99 at 12-13, 28, 34. Counsel testified:
My judgment was that the two statements were inconsistent, mutually inconsistent and, therefore, my argument to the jury was that the Commonwealth couldn't prove its case beyond a reasonable doubt because the jury had to pick and choose between which statement to believe.
Id. at 13. Therefore, counsel for Appellant made a strategic decision to challenge the statements by pitting one statement against the other to show that they were inconsistent and not to be believed. Because the strategy did not succeed does not make counsel ineffective. Consequently, counsel's decision not to move to suppress the statement was reasonable because: (1) there does not appear to have been a legal basis for the motion; and, (2) counsel used the statement for the purpose of showing that it was inconsistent with Appellant's previous statement. Because counsel's decision was reasonable under the circumstances, it cannot form the basis for a finding of ineffective assistance of counsel. Commonwealth v. Porter, 728 A.2d 890, 895-896 (Pa. 1999).
The Commonwealth Referred to Appellant's Statement to Police as a Confession
At trial, the Commonwealth presented a chart that showed a chronology of the events of the case. The chart contained one entry that listed the date of Appellant's confession to police. Appellant objected at trial on the ground that the statement to police should not be labeled a confession because Appellant asserts that it was involuntary. He further posits that calling the statement a confession impinges on the role of the jury.
Appellant's argument that his statement should not be referred to as a confession is absurd. Webster defines "confession" as "a statement of guilt or obligation in a matter pertaining to oneself." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
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