Commonwealth v. Mabie
| Decision Date | 06 July 1976 |
| Citation | 467 Pa. 464,359 A.2d 369 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Harry MABIE, Appellant. |
| Court | Pennsylvania Supreme Court |
Submitted March 29, 1976.
Edward G. Rendell, Philadelphia, for appellant.
F Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst Dist. Atty., Chief, Appeals Div., for appellee.
Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. OPINION OF THE COURT
Appellant, Harry Mabie, was arrested on March 1, 1974, in connection with the stabbing death of Lawrence DiGiacinto. Shortly thereafter, the court appointed counsel to represent the accused. On March 20, 1974, a preliminary hearing was held and subsequently Mabie was indicted on charges of murder, aggravated assault, possessing a prohibited offensive weapon and possessing an instrument of crime. On April 16, 1974, Mabie and his counsel appeared in court and specifically waived any right he may have had to file a motion to suppress a statement which Mabie made to police at the time of his arrest. On April 23, 1974, following plea negotiations between his counsel and the district attorney, Mabie, on the advice of counsel, entered a plea of guilty to murder generally. In return, the Commonwealth nolle prossed the aggravated assault and weapons charges, certified that the charge of murder rose no higher than murder of the second degree and recommended a sentence of from five to fifteen years imprisonment. After a colloquy, the guilty plea was accepted and at a degree of guilt hearing which followed, Mabie was adjudged guilty of murder of the second degree. A sentence of from five to fifteen years imprisonment was imposed. No post verdict motions were filed and no appeal was taken from the judgment of sentence.
On September 12, 1974, Mabie filed a Pro se petition requesting relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180--1 et seq. (Supp.1975--76). On October 8, 1974, the petition was denied without a hearing. An appeal was filed in this Court and on May 1, 1975, pursuant to an agreement of counsel, we remanded the case to the lower court for the filing of an amended PCHA petition and a hearing thereon.
The amended petition was filed alleging as grounds for relief that Mabie's plea of guilty was not voluntarily entered and that he was denied the effective assistance of trial counsel. A hearing was held on June 25, 1975 and relief was denied. This appeal, which presents the single issue of whether Mabie received effective assistance of counsel before entering his plea, followed.
Initially, the Commonwealth contends that the issue has been waived since the question of effective assistance of trial counsel could have been raised on direct appeal and no such appeal was taken. Commonwealth v. Tunnell, 463 Pa. 462, 345 A.2d 611 (1975); Commonwealth v. Blair, 463 Pa. 383, 344 A.2d 884 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). See also, PCHA, supra, §§ 3(d) and 4(b), 19 P.S. § 1180--3(d) and § 1180--4(b); Commonwealth v. Hines, 461 Pa. 271, 336 A.2d 280 (1975). While the issue was cognizable on direct appeal and Mabie's failure to so enter it raises, at least, a rebuttable presumption that his failure was knowing and understanding, and, therefore, the issue has been waived, we believe certain extraordinary circumstances present in this case have preserved this issue for our review at this time. In Commonwealth v. Dancer, supra, this Court, speaking through Mr. Justice Roberts said, 'Our Post Conviction Hearing Act and the principles of judgment finality mandate that claims of ineffectiveness of counsel may only be raised in PCHA proceedings (1) where petitioner is represented on appeal by his trial counsel, for it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness, . . .' 460 Pa. at 100, 331 A.2d at 438. Here, since trial counsel, who Mabie contends was ineffective, would have been required to file post verdict motions and a direct appeal on the issue of his own ineffectiveness were such procedures initiated, it is similarly unrealistic to expect counsel to file motions and/or an appeal challenging his own effectiveness. Therefore, where a PCHA petition alleges as grounds for relief that trial counsel, with whom the petitioner consulted concerning the feasibility of appeal, [1] has been ineffective and where trial counsel has not taken a direct appeal on behalf of the petitioner, the question of whether trial counsel was ineffective has not been waived for the purposes of review in a PCHA proceeding.
Appellant's claim that trial counsel was ineffective is based primarily upon counsel's alleged failure to satisfactorily investigate certain facts of the case thereby foreclosing several possible defenses. As such, appellant requests a new trial. Cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Since an evaluation of counsel's stewardship necessarily requires an examination of the facts and circumstances within counsel's knowledge at the time of the plea, the record has been reviewed, see Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970), and discloses the following.
On March 1, 1974, Mabie was arrested and gave a statement to police. In his statement, Mabie said that he and his brother had been drinking all day and that they had entered the bar where the incident took place to drink and play shuffleboard. Appellant was very successful playing shuffleboard for drinks with other patrons and became loud and boastful; so much so, he was refused additional service. The deceased, DiGiacinto, who had lost several times to appellant, started to shout and an argument ensued in which the deceased picked up a bar stool and hit Mabie three times. Mabie then drew a concealed knife and stabbed the deceased several times causing his death. On March 10, 1974, Mabie was interviewed by court-appointed counsel and during that interview he reiterated his statement to police with the additional information that he had been taken to a hospital for treatment of injuries after giving his statement. He then requested that counsel obtain the hospital records. Counsel then interviewed appellant's brother, who told counsel that he could not remember the incident due to his own intoxication, but counsel apparently made no effort to obtain the hospital records.
Counsel then met with a representative of the district attorney's office for plea bargaining purposes and attempted to negotiate for a guilty plea to voluntary manslaughter. However, the district attorney insisted upon a conviction of murder of the second degree and, failing that, the Commonwealth would proceed to trial seeking a conviction for murder of the first degree. Counsel was, however, shown the Commonwealth's file which contained the statement Mabie gave to the police, a police officer's description of Mabie when arrested and the names of several eyewitnesses.
On March 20, 1974, counsel represented Mabie at a preliminary hearing. The Commonwealth presented only one eyewitness, who was wounded during the incident, and he testified that he had been talking at the opposite end of the bar until he heard shouts. He turned and saw the actual stabbing, ran to help his friend, the deceased, and was wounded in the scuffle. On March 26, counsel again interviewed Mabie. At this meeting, counsel explained his inability to produce witnesses or corroborative evidence. He also explained the lack of possible defenses and informed Mabie of the plea bargain meeting with the district attorney. Mabie, however, did not agree to enter a plea at that point.
On April 17, Mabie and counsel appeared in court to enter a waiver to any right Mabie may have had to file a motion to suppress. [2] Following that appearance, Mabie told counsel that he was willing to plead guilty to murder generally in return for a recommended sentence of from five to fifteen years imprisonment. That plea was entered one week later and was accepted. Counsel offered no evidence of mitigating circumstances at the ensuing degree of guilty hearing.
Appellant now points to several omissions on counsel's part to establish that counsel was ineffective. These are, namely: failure to obtain the hospital records; failure to question eyewitnesses; and failure to offer evidence of mitigation at the degree of guilt hearing. At the hearing on the PCHA petition, trial counsel was called upon to explain his actions or lack thereof. In response to questions concerning his failure to explore appellant's contention that he was attacked and his failure to obtain the hospital records which may have established that fact, counsel stated that he relied upon the description of interrogating police officers [3] which was in the Commonwealth's file, to discount appellant's version of the incident. In response to questions concerning his failure to question eyewitnesses, counsel stated that based on the testimony he heard from the single witness at the preliminary hearing and a conversation [4] with Mabie, he concluded that the witnesses were so hostile that to call them at trial may have invited a conviction of murder of the first degree. Counsel admitted that, although he saw the witnesses at the preliminary hearing, be made no effort to speak with them at this or any other time. In response to questions concerning his failure to present evidence of mitigation at a degree of guilt...
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