Commonwealth v. Bailey

Citation390 A.2d 166,480 Pa. 329
PartiesCOMMONWEALTH of Pennsylvania v. Clarence BAILEY, Appellant.
Decision Date19 July 1978
CourtPennsylvania Supreme Court

Argued Sept. 30, 1977.

H. David Rothman, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist Atty., Robert A. Zunich, Pittsburgh, for appellee.



O'BRIEN Justice.

Appellant Clarence Bailey, was convicted by a jury of murder of the first degree. Post-verdict motions were filed and argued, and the court directed both parties to file briefs. Despite repeated requests by the court, no brief was filed by appellant's trial counsel. [1] The post-verdict motions were dismissed and appellant was sentenced to life imprisonment.

Appellant, represented by the Allegheny County Public Defender, filed an appeal to this court. He then petitioned this court to remand the case for an evidentiary hearing on the jury selection procedure in Allegheny County. By a per curiam order of February 11, 1971, this court granted appellant's petition.

No further action was taken until July 19, 1973, when appellant, now represented by privately-retained counsel, filed a petition under the Post Conviction Hearing Act (PCHA). [2] Appellant also petitioned for a hearing pursuant to our February 11, 1971 remand order. A hearing Pursuant to both petitions was held on November 2, 1973.

Following the hearing, the court below filed an opinion, holding that appellant failed to show that blacks were systematically excluded from jury service. The court granted appellant's post-conviction relief by finding that appellant was denied the effective assistance of counsel when trial counsel failed to file a brief in support of post-verdict motions. The court set aside its order dismissing appellant's post-verdict motions and ordered that the post-verdict motions be argued and briefed before the court en banc. The court made no other disposition concerning the other allegation in the PCHA petition.

On August 6, 1976, the court en banc denied appellant's post-verdict motions. This direct appeal followed.

Although appellant does not challenge the sufficiency of the evidence, this court has an independent duty to review the evidence in all convictions for murder of the first degree. Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187. As we have often stated, the standard when reviewing the sufficiency of the evidence is:

"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. . . . The fact-finder is free to believe all, part, or none of the evidence." (Citations omitted.) Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975).

The evidence produced at trial is as follows: In the early morning hours of October 11, 1969, appellant broke into the house of his paramour, Marion Carter, the victim in this case. According to the victim's two children, appellant spread gasoline over the premises and then doused both the victim and her children with gasoline. Appellant then threw a lighted match on the victim. Carter suffered severe burns and as a result of the burns, contracted pneumonia and died. The children, while being burned and suffering permanent injuries, survived. Under these facts, there can be no doubt that the evidence was sufficient to sustain appellant's conviction for murder of the first degree. [3]

Appellant claims that he is entitled to a new trial because he was denied the effective assistance of counsel because of trial counsel's failure to present evidence of appellant's extreme intoxication. The facts are as follows.

At trial, appellant testified in his own defense. On direct examination, appellant stated that prior to the fire, he had been drinking at a few bars in the Hill District section of Pittsburgh. Counsel never asked about the extent of appellant's drinking on the day in question. Appellant admitted going to Carter's house to frighten her. He testified, however, that the fire started when he accidentally spilled gasoline on the water heater. On cross-examination, appellant testified that in six hours of drinking, he had consumed seven or eight beers and four or five shots of whiskey. When asked by the prosecutor whether he believed he was intoxicated, appellant answered: "Well, I was drinking. I wouldn't say I was drunk but ". Before appellant could finish, the prosecutor pursued another line of questioning. On re-direct, appellant's counsel did not pursue the issue of intoxication.

At the PCHA hearing, trial counsel's failure to pursue the intoxication issue was challenged as ineffective assistance of counsel. Appellant's counsel testified that he didn't pursue the issue because appellant had told him that while he had been drinking for an extended period, he wasn't intoxicated.

Appellant took the stand and admitted he had understated his drinking to both his attorney and the jury. Appellant told the court he had done this because he didn't want to appear to the jury as a drunkard. He was able to produce two witnesses who testified that appellant had been drinking heavily the evening prior to the fire. One witness estimated that appellant had drunk almost two bottles of whiskey by 8 o'clock the evening before the fire. Appellant kept drinking until 3:30 a. m., when his drinking companion had to be driven home. The witness testified that shortly before he left, appellant was having difficulty standing up. This witness was never interviewed prior to trial.

In Com. ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967), we stated:

". . . our 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. The test is Not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. . . ." (Emphasis in original.)

The pivotal question thus becomes: Did appellant's trial counsel have a reasonable basis designed to effectuate appellant's interest for not pursuing the issue of intoxication? We answer in the negative, thus finding that appellant was denied the effective assistance of trial counsel. As such, appellant must be given a new trial. [4]

The Commonwealth urges that such failure is excusable because appellant denied being drunk when initially interviewed by his attorney. We disagree.

In United States v. DeCoster, 159 U.S.App.D.C. 326, 332, 487 F.2d 1197, 1203-04 (1973), the court set forth the following duties owed by counsel to a client:

"In General Counsel should be guided by the American Bar Association Standards for the Defense Function. They represent the legal profession's own articulation of guidelines for the defense of criminal cases.

"Specifically (1) Counsel should confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable. Counsel should discuss fully potential strategies and tactical choices with his client. "(3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. The Supreme Court has noted that the adversary system requires that 'all available defenses are raised' so that the government is put to its proof. * This means that in most cases a defense attorney, or his agent, should interview not only his own witnesses but also those that the government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research." (Emphasis added.) (Footnotes omitted.)

The ABA Standards Relating to the Defense Function, § 4.1 provide:

"It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty." (Emphasis added.)

The commentary to this section further provides:

"The lawyer's duty to investigate is not discharged by the accused's admission of guilt to him or by his stated desire to enter a guilty plea. The accused's belief that he is guilty in fact may often not coincide with the elements which must be proved in order to establish guilt in law. In many criminal cases the real issue is not whether the defendant performed the act in question but whether he had the requisite intent and capacity. The accused may not be aware of the significance of facts relevant to his intent in determining his criminal liability or responsibility. Similarly, a well-founded basis for suppression of evidence may lead to a disposition favorable to the client. The basis for evaluation of these possibilities is the lawyer's factual investigation for which the accused's own conclusions are not a substitute." (Emphasis added.)

The above-quoted se...

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