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COMMONWEALTH v. SMITH (03/18/71)

decided: March 18, 1971.

COMMONWEALTH
v.
SMITH, APPELLANT



Appeal from order of Superior Court Oct. T., 1969, No. 225, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1964, No. 1731, and No. 49 Misc. Docket No. 9, in case of Commonwealth of Pennsylvania v. Eddie Leon Smith.

COUNSEL

Francis M. Richards, Jr., and Pepper, Hamilton & Sheetz, for appellant.

Norris E. Gelman, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen took no part in the decision of this case.

Author: Pomeroy

[ 442 Pa. Page 267]

After a non-jury trial in 1964 appellant was found guilty of aggravated robbery, and received the maximum sentence of not less than ten nor more than twenty years at the State Correctional Institution. In 1967 appellant filed a petition under the Post Conviction Hearing Act (Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. 1180-1 et seq.), asserting, inter alia, the denial of his right to appeal. Following a hearing this claim was upheld. Appellant then filed, nunc pro tunc, motions in arrest of judgment and for a new trial. Both motions alleged denial of appellant's right to effective trial counsel and to present witnesses in his behalf at trial. The motions were dismissed by the trial court, and the Superior Court affirmed, per curiam, without opinion. 215 Pa. Superior Ct. 752, 255 A.2d 598 (1969). We granted allocatur because of the importance of the question of effective counsel presented, and now reverse.

The robbery here involved occurred on April 20, 1963. One year to the day later, appellant was arrested and charged with the crime. He was held without bail until the commencement of his trial on June 19, 1964. Reading the trial record and the record of the post-conviction hearing together, the following facts emerge. Appellant was assigned counsel from the staff of the Voluntary Defender of Philadelphia, and first met his trial attorney on the day of his trial. At that meeting appellant questioned his attorney as to the whereabouts of his witnesses whose presence he had requested through a prison social worker. Counsel had

[ 442 Pa. Page 268]

    no previous knowledge of the existence of these witnesses. Appellant informed him of the witnesses' names and their home towns, and stated that he expected one of the witnesses to substantiate his defense of alibi.

After the case was called but before the trial had begun, counsel informed the court of the fact that these witnesses were not on hand, gave their names and places of residence, and stated that appellant's position was that he was working for one of the witnesses, one Charles Wright, in New York on the day of the robbery. No motion for a continuance was made. The court stated "We have an eighty-year old lady here. I am sorry, it will have to go to trial. I am sorry, he had plenty of time -- people out of town and so forth". At the PCHA hearing the attorney testified that he did not move for continuance because of this announced position of the judge.

The record is not clear as to whether appellant in fact had any opportunity, during the three months of his incarceration before trial, to notify his trial counsel or any other representative of the Voluntary Defender of the existence of these witnesses. At the PCHA hearing the putative witness Wright (he gave his name as "Wrice") from New York testified that he was available at the time of trial and, had he been called as a witness, would have testified that appellant had been working for him in New York City on April 20, 1963, the date of the crime.*fn1

The prosecution's case consisted of the testimony of the robbery victim, who ...


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