decided: September 21, 1971.
Appeal from order of Court of Common Pleas of Dauphin County, No. 1493 of 1969, in case of Commonwealth of Pennsylvania v. Robert Louis Porter.
Richard D. Walker, Public Defender, for appellant.
Jerome T. Foerster, Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Concurring Opinion by Hoffman, J. Spaulding, J., joins in this concurring opinion.
Author: Per Curiam
[ 220 Pa. Super. Page 223]
Concurring Opinion by Hoffman, J.:
The issue presented in the instant appeal is whether the trial judge erred in refusing to admit the testimony of an individual, called by appellant as an alibi witness.*fn1 Appellant concedes that his trial attorney failed to file a notice of alibi as required by Rule 312 of the Pennsylvania Rules of Criminal Procedure.*fn2 In addition,
[ 220 Pa. Super. Page 224]
appellant admits that his attorney took no action in response to notice, in writing, by the District Attorney's office that compliance with the Pennsylvania Rules of Criminal Procedure would be required.
In light of trial counsel's disregard for the Rules of Criminal Procedure, I cannot conclude that the trial court abused its discretion in excluding the proferred testimony.
It is evident, however, that appellant may have a good claim that his attorney did not provide him with effective assistance of counsel. "Ordinarily, in the absence of clear and irrefutable on the record proof that counsel was ineffective, we will not decide an ineffective assistance of counsel claim on direct appeal. Rather, we will wait until [a Post Conviction Hearing Act] evidentiary hearing has given the Commonwealth an opportunity to show that the representation was effective under the standards enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967)." Commonwealth v. Benjamin, 219 Pa. Superior Ct. 344, 345, 280 A.2d 265, 266 (1971) (Spaulding, J.)
*fn1 Appellant claims that the witness would not have given alibi testimony at all but would have simply authenticated the record of appellant's employment on the day of the crime. Whatever merit this contention may have, it is being raised for the first time on appeal, and I do not believe that we should consider it.
"(b) Unless the interests of justice require it, on a defense of alibi a defendant may not call any witnesses not named in such notice, or any witness on an alibi different from that alleged in the notice."