Com. v. Gainer

• Decision Date: 28 August 1990
• Parties: COMMONWEALTH of Pennsylvania v. Donald GAINER, Appellant.
• Court: Pennsylvania Superior Court

Page 333

580 A.2d 333

397 Pa.Super. 348

COMMONWEALTH of Pennsylvania v. Donald GAINER, Appellant.

Superior Court of Pennsylvania.

Argued March 30, 1990.

Filed Aug. 28, 1990.

Michael L. Healey, Pittsburgh, for appellant.

Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before CIRILLO, President Judge, and WIEAND, McEWEN, MONTEMURO, BECK, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

WIEAND, Judge:

Appellant's principal contention in this appeal from an order denying P.C.H.A. relief ¹ is that trial counsel was ineffective when, after introducing evidence of an alibi defense, he failed to request the court to instruct the jury on the significance of the alibi evidence. Post-trial and appellate counsel are also alleged to be ineffective for failing to preserve for direct review the absence of such an instruction.

Donald Gainer was tried by jury and, on March 1, 1985, was found guilty of two counts of arson and one count of risking a catastrophe in connection with a fire which had destroyed the Arcade Theatre on the South Side of Pittsburgh on February 5, 1984. Gainer was represented at trial by John O'Connor, Esquire, ² who withdrew after filing post-trial motions. The Public Defender's Office was then appointed to represent Gainer and filed supplemental post-trial motions. The Public Defender subsequently withdrew from the case because of a potential conflict of interest, and Joseph Vogrin, Esquire, was appointed to represent appellant. He filed a second supplemental motion for post-trial relief in which he raised additional issues. After an evidentiary hearing had been held on post-trial motions, relief was denied, and Gainer was sentenced to serve an aggregate term of imprisonment of not less than twenty (20) years nor more than forty (40) years. The Superior Court, on direct appeal, affirmed the judgment of sentence. ³ On April 6, 1987, Gainer filed a pro se P.C.H.A. petition, and Dennis I. Turner, Esquire, was appointed to represent him. Subsequently, Gainer retained the services of Michael J. Healey, Esquire, who currently appears as counsel for the defendant. An evidentiary hearing was held on October 27, 1988, after which the P.C.H.A. court issued an order denying post conviction relief. It is from the order denying post conviction relief that the instant appeal has been filed.

In Commonwealth v. House, 371 Pa.Super. 23, 537 A.2d 361 (1988), the Court said:

Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986), allo. denied, 514 Pa. 629, 522 A.2d 558 (1987). To meet that burden, appellant must demonstrate that 1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel's ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 158-160, 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Id. at 28, 537 A.2d at 363. See: Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); Commonwealth v. Riggins, 374 Pa.Super. 243, 248[397 Pa.Super. 352] -249, 542 A.2d 1004, 1007 (1988). Establishing prejudice "requires [a] showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Moreover,

"[b]efore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant's interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel's assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis [designed] to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983). See also: Commonwealth v. Akers, 392 Pa.Super. 170, 190, 572 A.2d 746, 755-756 (1990); Commonwealth v. Harner, 377 Pa.Super. 229, 243-244, 546 A.2d 1241, 1247-1248 (1988).

Instantly, both appellant and his girlfriend, Sandra Christensen, testified at trial that appellant had been at Christensen's home at the time when the fire occurred. According to their testimony, appellant had picked Christensen up at work at or about 9:00 p.m., and the two had gone out until 1:00 a.m., when they returned to Christensen's home. A babysitter, Ann Ryderewski, confirmed that appellant and Christensen had returned to Christensen's home about 1:00 a.m., but Ryderewski said she had fallen asleep shortly thereafter and could not say whether appellant and Christensen were still in the house when the fire occurred at or about 2:30 a.m.

A review of the record makes it abundantly clear that the alibi testimony was a major part of appellant's defense. It was presented to the jury during trial and emphasized during counsel's closing argument. Despite appellant's reliance on the defense of alibi, the trial court did not instruct the jury regarding the significance or effect of the alibi evidence. Indeed, the subject of alibi was not mentioned during the court's charge to the jury. Trial counsel, moreover, did nothing to request such an instruction or object to the absence thereof. The failures of court and counsel were not raised in post-trial motions and, of course, were not argued on direct appeal. They were raised for the first time in appellant's pro se brief in support of his P.C.H.A. petition, and were argued at the evidentiary hearing held on October 27, 1988.

Because appellant contends that all prior counsel were ineffective for failing to assert the absence of an alibi instruction this issue has been properly raised. It was raised at the first opportunity at which appellant was no longer represented by those lawyers whose effectiveness was being challenged. See: Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 646 (1982); Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978).

"Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963). In Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), the Supreme Court said:

The Commonwealth has the burden of proving every essential element necessary for conviction. If the defendant traverses one of those essential elements by evidence of alibi, his evidence will be considered by the jury along with all the other evidence. It may, either standing alone or together with other evidence, be sufficient to leave in the minds of the jury a reasonable doubt which, without it, might not otherwise exist. It will be the duty of the trial judge to carefully instruct the jury as to the relationship of the evidence of the prosecution and the evidence of the defendant as each bears upon the essential elements of the crime charged. This must be done without unfair disparagement although the trial judge must be left free to comment upon the evidence, as he has done heretofore, so long as he leaves the jury free to find its own true verdict.

Id. at 231-232, 151 A.2d at 446. Subsequently, in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), the Supreme Court held that when a defendant introduces evidence of alibi he is entitled to have the jury instructed that it should return a verdict of acquittal if the defendant's alibi evidence, "even if not wholly believed, raise[s] a reasonable doubt of his presence at the scene of the crime at the time of its commission and, thus, of his guilt." Id. at 633, 417 A.2d at 603 (footnote omitted). "Where an alibi defense is presented, such an instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant's guilt." Id. at 633-634, 417 A.2d at 603 (footnote omitted). The Pounds rationale was reaffirmed by the Supreme Court in Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989). ⁴

The Commonwealth attempts to distinguish these Supreme Court decisions because they involved refusals by trial courts to give an alibi instruction and did not hold that trial counsel was ineffective for failing to request such an instruction. This is a distinction without a difference. In either event, the jury was not adequately instructed. The issue of the ineffectiveness of counsel for failing to request an alibi instruction was addressed by the Superior Court in Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985), where, after reciting the holdings of Bonomo and Pounds, the Court concluded:

In the case sub judice, appellant's only witness had been an alibi witness. A correct jury instruction, therefore, was vital. Appellant's counsel, however, did not request such an instruction; and when the court gave none, counsel failed to object.

In the face of this obvious dereliction, appellant's counsel testified at the P.C.H.A hearing that he didn't request a specific alibi instruction because he didn't...