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Commonwealth v. Brown4/29/2005
ot ineffective for failing to present evidence of alleged abuse where neither the defendant nor his family informed counsel of the abuse). Thus, there is no merit to the issue of trial counsel ineffectiveness and the claim of appellate counsel ineffectiveness has not been established.
Within this same claim of ineffectiveness, Appellant further contends that appellate counsel was ineffective due to trial counsel's failure to hire a firearms expert to examine the evidence linking Appellant to the murder weapon. He asserts that he has currently retained such an expert who opined that the police were grossly negligent in failing to have the gun fingerprinted before the fingerprints were destroyed by the blood examination. He also contends that appellate counsel was ineffective as a result of trial counsel's failure to object to testimony that twenty or more shotgun shells were found in Appellant's room when there was no evidence establishing that a shotgun was used in the commission of the instant murder.
To determine the merit of this claim under McGill and Rush, we again look to whether there is arguable merit to the issue of trial counsel's ineffectiveness for failing to have the firearm fingerprinted. Detective Bittenbender testified at trial that the handgun was supposed to be submitted for fingerprints, but was not because of a mistake made by the police department. (N.T. 7/18/91, 652-53). Because trial counsel had nothing to do with the reason why the gun was not promptly fingerprinted, there is no arguable merit to the issue of trial counsel's ineffectiveness in this regard. Thus, the claim of appellate counsel ineffectiveness cannot prevail.
As to the issue relating to trial counsel's failure to object to testimony that shotgun shells were found in Appellant's bedroom, we find that Appellant has failed to demonstrate the prejudice prong of the Pierce standard as it relates to trial counsel's performance. Appellant could not have been prejudiced by such testimony because Appellant himself testified that he owned several guns, including a blank shotgun, as well as gun-related items. (N.T. 7/19/91, 831-32). Thus, trial counsel cannot be deemed ineffective and the claim of appellate counsel ineffectiveness necessarily fails.
Appellant also argues that appellate counsel was ineffective for failing to raise the issue that trial counsel improperly denigrated his client (Argument XI). Appellant argues that in the closing argument of the penalty phase, his counsel stated the following:
hen my client, John Brown, has to be one of the most evil people that ever graced the threshold of this planet. He has to be rotten and malicious. He has to be the most evil person there ever was.
Appellant's Brief at 62. Appellant contends that trial counsel's denigration of his client emphasized to the ultimate sentencer that he was a bad person.
This claim is belied by the record. Rather than arguing to the jury that Appellant was evil, trial counsel asserted that, if the prosecution's version of the events were true, Appellant would have to be "the most evil person there ever was, but I suggest to you that he is not. He is not that." (N.T. 9/22/92, 925). Trial counsel then explained why the prosecutor's version of the events was not true. The issue of trial counsel ineffectiveness therefore lacks arguable merit and the claim of appellate counsel ineffectiveness fails.
Finally, we examine those claims that were not previously litigated or waived and do not allege the ineffective assistance of counsel. The first claim in this category alleges that Appellant was incompetent to stand trial and therefore his conviction and death sente
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