Com. v. Washington
| Decision Date | 29 March 1976 |
| Citation | 239 Pa.Super. 336,361 A.2d 670 |
| Parties | COMMONWEALTH of Pennsylvania v. Eugene WASHINGTON, Appellant. |
| Court | Pennsylvania Superior Court |
Hugh S. Rebert, York, for appellant.
Donald L. Reihart, Dist. Atty., York, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
On October 21, 1971, a jury found appellant and two co-defendants, Eddie Carroll and Henry Padgett, guilty of robbery, assault and battery with intent to rob, aggravated assault and battery, and assault and battery. On October 30, 1972, after denial of post-trial motions, appellant was sentenced to one and one-half to three years' imprisonment, to be served after the expiration of a sentence of two and one-half to five years imposed on the same day on an unrelated armed robbery indictment. On appellant's direct appeal, we affirmed Per curiam. Commonwealth v. Washington, 225 Pa.Super. 749, 306 A.2d 361 (1973).
In July, 1973, appellant filed a petition under the Post-Conviction Hearing Act 1 alleging that his trial counsel, the then Chief Public Defender of York County, was ineffective in failing to give timely notice of an alibi defense, as was then required by Rule 312 of the Pennsylvania Rules of Criminal Procedure. 2 Counsel's omission precluded the alibi witness, Patricia Grimes, from testifying that she and appellant had been at her aunt's house at the time the robbery was alleged to have been committed. 3
On October 2 and 17, 1973, a hearing was held on appellant's PCHA petition. 4 In denying the petition, the hearing judge held that the ineffectiveness claim has been waived since it had not been raised on direct appeal (Opinion of April 18, 1974, at 2). Since, however, appellant's counsel on the appeal had also represented him at trial, the ineffectiveness claim was properly presented in the PCHA proceeding, Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), and we shall therefore address it on the merits. We have concluded that appellant's trial counsel had no strategic basis for failing to give timely notice of an alibi witness, and that this failure cannot be said to be harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Consequently, since appellant was denied his constitutional right to the effective assistance of counsel, a new trial must be awarded.
-A-
The Commonwealth's only witness at trial was Frank Martin, the victim. Martin, an insurance agent, testified that on December 11, 1970, he was robbed and beaten by appellant and his co-defendants while he was making collections for an insurance company. Martin further testified that the incident had occurred approximately fifty to one hundred feet from an intersection, that the night was overcast, and that the street lights were illuminated. He made an unequivocal in-court identification of all three codefendants (Trial Record at 6, 10).
The cross-examination of Martin by appellant's counsel 5 demonstrates that the issue of identification was an important part of the defense's trial strategy. Thus on cross-examination the following facts were disclosed. On the evening of the day of the robbery, Martin was shown an array of fifty to sixty photographs but was unable to identify any of his assailants. Five days later, Martin was shown fifteen photographs, from which he identified appellant and co-defendant Padgett (Trial Record at 13--14, 17). Finally, on February 10, 1971, immediately prior to a scheduled lineup at the York County Jail, Martin was shown four photographs, from which he identified the three co-defendants. When defense counsel learned of this, he objected, and the lineup was cancelled (Trial Record at 16).
The February 10 identification had formed the basis for a pretrial motion to suppress identification. At a hearing on the motion, held on April 27, 1971, the alleged suggestiveness of the identification was explored in detail. Thus, the following exchange took place between Martin and defense counsel concerning the circumstances surrounding the photographic display at the York County Jail:
Q. Isn't it a fact that when you went down to City Hall and Mr. Robertson (police detective) showed you these photographs he wanted to refresh your memory and recollection before going to the lineup?
A. Yes.
Q. And he told you their names and who they were?
A. Yes.
Q. And he told you they were the four 6 defendants in this action, did he not?
A. Yes.
-B-
In light of the foregoing, production of an alibi witness by the defense would have buttressed its attempt to undermine the identification testimony of the Commonwealth's only witness. Defense counsel conceded as much at the PCHA hearing:
Q. Getting back to the relevancy of the alibi defense, I believe under direct examination you testified that the alibi was never really an issue. If the question basically was one of identification, wouldn't the fact that the defendant had a possible alibi have an influence on whether or not that identification was valid?
A. I'd have to agree, Mr. Rebert, that we inquired (sic) information from Mr. Padgett and filed an alibi application for him. It would have been just as relevant for Mr. Washington.
Q. Then it was an issue?
A. Certainly, I would think if you find basic information available, it would be one to be used, yes.
At trial, however, in explaining his failure to file proper notice of alibi defense, defense counsel disclaimed any prior knowledge of the alibi witness' existence:
MR. RUTH (defense counsel): Your Honor please, I had filed a notice of alibi on behalf of Padgett. I have no individual recollection (sic) of Mr. Washington or Mr. Carroll advising me of an alibi or of the witness that just left the witness stand being available. They have informed me that some time ago I did interview her and did discuss with them her testifying. I just don't know, Your Honor. We have nothing in my file to show it.
Counsel's explanation at the time of trial poses two questions. First, does the record support counsel's statement that he had no prior knowledge of the alibi witness's existence? Second, if counsel in fact knew of the alibi witness's existence, was he ineffective in failing to file the notice required by Rule 312, thereby precluding the witness from testifying?
-A-
Significantly, the hearing judge in his opinion denying PCHA relief observed that '(w)e cannot conclude however that defense counsel was unaware of the alibi witness' (Opinion at 2). This amounts to a finding that counsel was aware of the witness. As such, it is amply sustained by the testimony adduced at the PCHA hearing.
Appellant testified at the PCHA hearing that he and Patricia Grimes, who was his girlfriend and the alibi witness, had visited the Public Defender's office and had told trial counsel that Grimes would testify as an alibi witness (PCHA hearing, at 3). Eddie Carroll, one of appellant's co-defendants, testified that he had told trial counsel at the York County Jail that appellant, Carroll, Grimes, and one Ernestine Thompson (Carroll's girlfriend and Grimes's aunt) had been together at Thompson's house at 339 South Duke Street in York at the time of the robbery (PCHA hearing, at 45). Grimes gave similar testimony. Although she described the South Duke Street address as her aunt's house, this apparent discrepancy may be reconciled by the fact that Thompson was Carroll's girlfriend. She corroborated appellant's contention that she and appellant had visited trial counsel and had informed him that she would testify that she had been with appellant at the South Duke Street address from about 3:00 to 8:00 P.M. (the robbery had occurred around 6:00 P.M.).
The testimony given by appellant, Carroll and Grimes--who all had an obvious interest in the outcome of the case--was corroborated by certain records of the Public Defender's office. Trial counsel (who, it will be recalled, was the Chief Public Defender of York County at the time) testified that a check of the records had disclosed that appellant had had an appointment at the Defender's office at 4:00 P.M. on February 3, 1971--eight months before appellant's trial, and during the period in which appellant was on bail waiting trial (PCHA hearing, at 28). Even more important was a notation in trial counsel's handwriting on appellant's application for Public Defender representation, that appellant
claims at girlfriend's house, Ernestine Kinnard, 339 South Duke Street (in hospital now), Ernestine, Pat Grimes (same place) Dorothy?
(PCHA hearing, at 26). Trial counsel conceded that this notation could have been made no later than February 28, 1971--months before the trial and well in advance of the time deadline imposed by Rule 312 of the Pennsylvania Rules of Criminal Procedure. Trial counsel testified that he had no recollection of interviewing Grimes, but 'can't categorically say I didn't see her' (PCHA hearing, at 33), but this testimony does not undo the effect of the records of the Public Defender's office itself, which show that trial counsel, contrary to his position at trial, did know of the existence of the alibi witness.
-B-
The standard against which counsel's performance is to be measured has been frequently repeated:
'(O)ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had Some reasonable basis designed to effectuate his client's interests . . . Although weigh the alternative we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.'
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