Commonwealth v. Wade

• Court: Pennsylvania Supreme Court
• Writing for the Court: Author: Larsen
• Citation: Com. v. Wade, 461 A.2d 613, 501 Pa. 331 (Pa. 1983)
• Decision Date: 27 May 1983
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. C. Alton WADE, Jr., Appellee.

Page 613

461 A.2d 613

501 Pa. 331

COMMONWEALTH of Pennsylvania, Appellant, v. C. Alton WADE, Jr., Appellee.

Supreme Court of Pennsylvania.

Argued April 19, 1983.

Decided May 27, 1983.

Reargument Denied July 13, 1983.

[501 Pa. 332] Lee Ruslander, Chief, Appeals Div., West Chester, for appellant.

Alan Lourie, John R. Merrick Asst. Public Defenders, for appellee.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION

LARSEN, Justice.

On April 17, 1974, appellee C. Alton Wade, Jr. was convicted by a jury of voluntary manslaughter and sentenced to a term of imprisonment of five to ten years. On appeal, this Court vacated the judgment of sentence and remanded for an evidentiary hearing on the issue of trial counsel's ineffectiveness in failing to produce one Sam Stearly as an alibi witness at trial. Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978). After conducting an evidentiary hearing, the court of common pleas concluded that trial counsel's failure to interview Sam Stearly and to call him as an alibi witness constituted ineffective assistance of counsel and granted appellee a new trial. This direct appeal by the Commonwealth followed.

The Commonwealth contends that trial counsel was not ineffective in failing to produce Sam Stearly at trial because Sam Stearly could not have provided an alibi for appellee even if he had testified. We agree.

"The test of constitutionally effective assistance of counsel is whether a 'particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests'." Commonwealth v. Upsher, 497 Pa. 621, 626, 444 A.2d 90, 92 (1982) (emphasis in original; citation omitted).

With respect to the course chosen by counsel in this case--failing to interview and call Sam Stearly as an alibi witness--"[i]t is well-settled that the failure of trial counsel to call a potential alibi witness does not constitute ineffective assistance unless there is some showing that the testimony of the absent witness would have been helpful in establishing the asserted defense." Commonwealth v. Leonard, --- Pa. ----, 453 A.2d 587, 589 (1982). See also Upsher, supra 497 Pa. at 626, 444 A.2d at 92 ("The initial factor that is considered in applying this standard is whether the matters counsel is charged with failing to competently pursue had arguable merit.").

In this case, there was no showing that the testimony of Sam Stearly would have helped appellee establish an alibi defense. "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 this regard, the record reveals the following facts.

Appellee was convicted of voluntary manslaughter for "stomping" on the abdomen of two-year-old Daniel Strong, the son of the woman with whom appellee was then living, thus causing his death. At trial, Daniel's mother Regina Strong testified that on December 1, 1973, she brought Daniel into appellee's and her bedroom "somewheres around four o'clock"; that appellee was in the bedroom at the time; that after Regina Strong took Daniel to the bathroom, she brought him back into the bedroom where he was hit several times with a "horse crop"; that he was taken back to the bathroom for five more minutes; and that he was then brought back to the bedroom, hit several more times with the "horse crop," and, finally, "stomped." Michele Sauvage, who also lived in the house with appellee and Regina Strong, ¹ testified that some time "between two-thirty and three-thirty" she saw Regina Strong take Daniel into the bedroom; that she heard appellee's voice coming from the bedroom; that she then heard the sounds of leather hitting skin and Daniel crying; and that these sounds continued for twenty to twenty-five minutes.

Based upon this testimony, an alibi witness for appellee would have to place appellee outside the house and away from Daniel from 2:30 until approximately 4:30 on December 1. The record fails to reveal how Sam Stearly could provide this alibi, however.

At the post-trial evidentiary hearing, Sam Stearly testified that he went to appellee's farm to pick up a chain saw from appellee; that he did not remember what time he arrived at the farm, although it was light outside; that he first went to the house where he saw a lady with a...