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Commonwealth v. Ogrod12/30/2003
8 (Pa. 1993) cert. denied, 513 U.S. 1114 (1995). Because the photographs were properly admitted, we reject Appellant's arguments that: (1) the admission of the photographs entitled him to a new trial; (2) his trial counsel was ineffective for purportedly failing to object to the photographs; and (3) the prosecutor engaged in misconduct by presenting them.
Trial Counsel Failed to Call Character Witnesses
Appellant argues that his trial counsel was ineffective in failing to present the character testimony provided at Appellant's first trial. Appellant reasons that the failure of his counsel to call character witnesses was without reasonable basis and, therefore, ineffective.
The Commonwealth counters by pointing-out that, " failure to call a witness is not per se ineffective assistance of counsel for such decision usually involves matters of trial strategy." Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996). Indeed, in this case it appears that defense counsel in the second trial studied the first trial and believed that Appellant's case was harmed when he presented character testimony because the prosecutor was able to respond with testimony that Appellant had a reputation as not being law-abiding. N.T. 10/29/93 at 951-960. During the post-sentence motion hearing, defense counsel explained that he did not present character evidence at the second trial because he wanted to prevent the prosecution from presenting contrary evidence. N.T. 12/20/99 at 27-28. Defense counsel testified as follows:
Q. During the first trial, you submitted and produced several people to testify as to the defendant's good character; isn't that correct?
A. That's correct.
Q. During the second trial, you produced no good character testimony; isn't that correct?
A. That is also true.
Q. Was there a rational or reasonable basis, what was your basis for failing to produce any character witnesses?
A. During the cross-examination of the character witnesses, Mr. Casey brought up specific acts of conduct that were -- was designed to impeach the accuracy of the character witnesses' testimony; and based upon that impeachment, I did not want to open the door a second time to Miss Rubino (the prosecutor) impeaching the character witnesses with other acts of misconduct on the part of Mr. Ogrod which would have nullified the impact of the character testimony.
N.T. 12/20/99 at 27-28 (emphasis added). Because it is clear that defense counsel had a reasonable strategic basis for not calling character witnesses at the second trial, counsel was not ineffective by failing to call the witnesses. Porter, 728 A.2d at 895-896.
Trial Counsel Did Not Call Witnesses to Testify that Appellant was Sleep Deprived
Appellant claims that his trial counsel was ineffective for failing to call several witnesses who would have testified that Appellant was sleep-deprived and ego-weak and that, therefore, his confession to police was not voluntary. Brief of Appellant at 70. Appellant further contends that there was no reasonable basis to have called these witnesses at the first trial but not to call them at the second trial. Id. The Commonwealth responds by pointing out that the decision not to call a witness is not ineffective assistance of counsel where counsel had reasonable basis for his decision. Auker, 681 A.2d at 1319.
At the post-sentence motion hearing, Appellant's trial attorney testified that his trial strategy at the second trial was necessarily different from that at the first trial because the Commonwealth had obtained a second confession from Appellant. N.T. 12/20/99 at 32-34. Because
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