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COMMONWEALTH v. JOHNSON (11/16/73)

decided: November 16, 1973.

COMMONWEALTH
v.
JOHNSON, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, Nos. 250 and 252, in case of Commonwealth of Pennsylvania v. Donald Johnson.

COUNSEL

Joseph Michael Smith and F. Emmett Fitzpatrick, Jr., for appellant.

James T. Ranney and David Richman, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Jacobs, J. Spaeth, J., concurs in the result.

Author: Jacobs

[ 226 Pa. Super. Page 2]

This is an appeal from the lower court's order dismissing appellant's Post Conviction Hearing Act*fn1 petition. We agree with the lower court's disposition of the case, and affirm.

The facts surrounding appellant's conviction are as follows: On May 31, 1970, a robbery took place at a bar in Philadelphia. Appellant was arrested and charged with the crime. At trial, one of the bartenders positively identified appellant as one of the robbers. The judge, who was sitting without a jury, found appellant guilty of aggravated robbery. Consequently, appellant was sentenced to not less than 2 nor more than 8 years in a state correctional institution. No direct appeal was taken, but appellant at a later time filed a Post Conviction

[ 226 Pa. Super. Page 3]

Hearing Act petition. In this petition, which was amended with the aid of counsel, appellant alleged that he was denied effective assistance of counsel; that he did not knowingly and intelligently waive his right to a jury trial; and that certain identification testimony should not have been admitted at trial.*fn2

In reviewing appellant's claim of ineffective assistance of counsel "[o]ur task in cases of this nature . . . encompasses both an independent review of the record, . . . and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).

In his petition, the appellant alleged that his trial counsel was ineffective because he failed to produce certain persons as witnesses for his alibi defense. However, the record of the hearing on appellant's petition reveals that trial counsel or his associates*fn3 attempted at various times to reach all of these individuals, but contact was made with only one of them.*fn4 That person could not personally vouch for appellant's whereabouts on the night of the robbery, but he told them of another possible witness who also could not be located. However, defense counsel was able to stipulate with the prosecution that if one of the alibi witnesses were called she would testify that appellant had been at her residence at the time of the robbery. At trial, this stipulation was entered into evidence.

The record shows that trial counsel made reasonable efforts to reach the alibi witnesses and that appellant's alibi defense was ...


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