decided: November 26, 1973.
Appeal from order of Superior Court, April T., 1972, No. 260, affirming order of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1966, Nos. 21 and 71, and April T., 1966, No. 19, in case of Commonwealth of Pennsylvania v. James E. Owens.
John R. Cook and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.
Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.
[ 454 Pa. Page 269]
Appellant James E. Owens claims he was denied his constitutional right to effective assistance of counsel
[ 454 Pa. Page 270]
because his privately-retained attorney did not sufficiently consult with him pretrial, and because counsel failed at trial to call as witnesses two friends of appellant, who he asserts could have possibly exculpated him from one of three armed robbery convictions. We conclude that the record does not support appellant's claim; we affirm.
[ 454 Pa. Page 271]
Appellant on June 24, 1966, was tried non-jury for a series of armed robberies and found guilty.*fn1 The trial court sentenced him to undergo consecutive terms of imprisonment of three to twenty years on each of three indictments. A timely motion for a new trial was filed and after argument denied. An appeal was taken to the Superior Court which in a per curiam opinionless order affirmed the judgment of sentence. Commonwealth v. Owens, 209 Pa. Superior Ct. 714, 224 A.2d 653 (1966). Appellant commenced the present collateral proceeding on July 11, 1969, by filing a petition pursuant to the Post Conviction Hearing Act. Act of January 25, 1966, P. L. (1965) 1580, §§ 1-14, 19 P.S. §§ 1180-1 to -14 (Supp. 1973). After an evidentiary hearing the petition was dismissed. The Superior Court without opinion affirmed per curiam. Commonwealth Page 271} v. Owens, 223 Pa. Superior Ct. 756, 299 A.2d 334 (1973). We limited our grant of allocatur to the question whether appellant was afforded effective assistance of counsel.
Since this Court's decision in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), we have often repeated that mere shortness of time spent in conference with a client does not per se establish ineffective assistance of counsel.*fn2 E.g., Commonwealth v. Hill, 450 Pa. 477, 481 & n.4, 301 A.2d 587, 590 & n.4 (1973); Commonwealth v. Skipper, 440 Pa. 576, 271 A.2d 476 (1970); Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970); Commonwealth v. Berry, 440 Pa. 154, 269 A.2d 921 (1970); Commonwealth ex rel. Johnson v. Russell, 428 Pa. 440, 239 A.2d 399 (1968). Consistent with our view is the United States Supreme Court's refusal "to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel . . . ." Chambers v. Maroney, 399 U.S. 42, 54, 90 S. Ct. 1975, 1982-83 (1970).
To find a deprivation of the constitutional right to effective assistance of counsel,*fn3 this Court must make
[ 454 Pa. Page 272]
an independent examination of the record. "We cannot emphasize strongly enough, however, that 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. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis." Washington, supra at 604-05, 235 A.2d at 352-53 (footnote omitted).
Initially, appellant has failed to establish that trial counsel had inadequate time to prepare his defense. While it is uncontradicted that counsel's interviews of appellant altogether amounted to no more than sixty minutes, there were at least two and perhaps four interviews conducted during a period of several months.*fn4 Determinatively, the time actually spent by counsel with the accused discussing his case is not necessarily related to, and affords no basis for inferring, the extent of total trial preparation.
Secondly, had appellant clearly established that he had communicated to his attorney the existence of the two witnesses and his attorney, without investigation, had failed to call them as witnesses, then such conduct, if not explained, would be a relevant circumstance in determining whether appellant was denied effective assistance of counsel. However, the record fails to
[ 454 Pa. Page 273]
establish that appellant's attorney was made aware of the possible alibi witnesses.*fn5
Trial counsel was retained and compensated by Linda Williams, a friend of appellant who was one of the possible alibi witnesses. At the PCHA hearing she could not recall relating any exculpatory story to trial counsel, although it is uncontradicted that she actually discussed the case with him.
When appellant testified at trial and was asked whether he could remember his whereabouts on any of the crucial days, he responded negatively. When given the opportunity to add anything further to his defense, appellant offered nothing.
Appellant's counsel also testified at the PCHA hearing. He could not remember having appellant as a client and certainly could not remember whether he was told an alibi defense. He did state, however, that it was his practice, in accordance with the then prevailing Pennsylvania rule, timely to notify the district attorney's office of the existence of any alibi defense. There is no record of his having done so in this case.
[ 454 Pa. Page 274]
The problematical value of appellant's alibi defense is apparent from its content. His alibi witnesses, if believed, could have exculpated him from only one armed robbery, that of Eugene Hillary.*fn6 Appellant claims that during the time in question it was his custom to spend Saturday evenings with his girl friend, Linda Williams, and a mutual friend, James Tate. Since the robbery of Hillary took place on Saturday night, appellant reasons, he could not have been involved. This robbery was perpetrated within approximately a fifteen minute span, so it is possible that appellant could have committed the robbery and yet spent the better part of the evening with his friends. Moreover, the victim was certain in his identification of appellant and his co-defendant as the robbers, and further testified that he had seen them walk past his store several times after the robbery and before their arrest.
Assuming appellant's counsel knew of the witnesses, failure to call possible alibi witnesses is not per se ineffective assistance of counsel. See United States ex rel. Green v. Rundle, 305 F. Supp. 523, 525 (E.D. Pa. 1969). Here, given the weakness of the alibi, trial counsel could reasonably have believed it would not have aided the defense. Commonwealth v. Karchella, 449 Pa. 270, 273-74, 296 A.2d 732, 733 (1972). Or counsel could have properly concluded in these circumstances that the possibility of the alibi being believed was more than offset by the probability that advancing it would only highlight appellant's lack of defense to the other armed robberies. Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972). Counsel's decision was "clearly a matter of trial strategy that
[ 454 Pa. Page 275]
call[ed] for the 'ultimate choice and responsibility' of defense counsel." Id. at 589, 297 A.2d at 459. On this record there is no indication that counsel did not properly exercise his responsibility.