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COMMONWEALTH v. BRONSON (07/01/74)

decided: July 1, 1974.

COMMONWEALTH
v.
BRONSON, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, No. 1695, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1966, No. 312, in case of Commonwealth of Pennsylvania v. Julius Bronson.

COUNSEL

Barbara Brown, Assistant Defender, with her Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Albert L. Becker, Assistant District Attorney, with him William Boland and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Eagen, Mr. Justice O'Brien and Mr. Justice Nix concur in the result. Mr. Justice Pomeroy dissents.

Author: Manderino

[ 457 Pa. Page 68]

The appellant, Julius Bronson, was convicted on March 7, 1967, of assault and battery with intent to kill. Post-verdict motions were filed but later withdrawn and the appellant received a sentence of six months to seven years. No appeal was taken from the judgment of sentence. In 1970, appellant filed a PCHA petition. Among the issues raised were (1) whether the appellant was denied the effective assistance of counsel at trial and (2) whether the appellant was denied his appeal rights following his trial. Relief was denied except on the issue of appellant's appeal rights. As to that issue, appellant was granted the right to file post-verdict motions. Counsel for the prosecution and defense agreed that the denial of relief as to the issues raised in the PCHA petition would be appealed together with any order entered following a consideration of additional issues raised in the post-verdict motions. Post-verdict motions were then filed and denied. On appeal the Superior Court affirmed per curiam. Commonwealth v. Bronson, 221 Pa. Superior Ct. 767, 291 A.2d 798 (1972). We granted appellant's petition for allowance of appeal.

Appellant argues that he was denied the effective assistance of counsel in that trial counsel failed to raise the defense of alibi. Initially we note that the trial court, in its opinion, did not explain its reasons for denying appellant's claim. No issue is raised by either side in this appeal, however, concerning the lack of a discussion of this issue by the trial court. Moreover, the essential facts are not in dispute although the parties disagree as to the proper legal conclusions to be drawn from the facts. Concerning the issue of the

[ 457 Pa. Page 69]

    effective assistance of counsel, we said in Commonwealth v. Woody, 440 Pa. 569, 574, 271 A.2d 477, 480 (1970): "[N]o weight [is] given . . . to the allocation of the burden of proof in this area. What is needed is an independent judicial review of the record. Preferably, that independent review should occur initially in the trial court. However, if no such independent review has occurred at the trial level, and if the record is complete enough to support such an examination, this Court then should undertake that task. . . ." This Court can therefore proceed to decide the question raised. We have independently reviewed the record and conclude that the appellant was denied the effective assistance of counsel. We, therefore, reverse the judgment of sentence and award a new trial.

The evidence at trial established that on the evening of July 14, 1966, the victim, Joseph Stewart, while walking along the street, met the appellant's co-defendant. The victim asked the co-defendant for a match and inquired about the co-defendant's presence in the neighborhood. There then appeared from behind the steps of a house a second individual "with a shotgun". The victim was asked where "his boys" were. Just then, a police car appeared in the area. A friend of the victim then appeared on the scene and shouted that the police were coming. The victim and his friend began to run. The victim had covered no more than fifteen feet when he was shot in the back by a shotgun. No one saw the shotgun fired. The prosecution's case rested on the victim's identification of the appellant as the individual with the shotgun. The victim was the only prosecution witness who placed the appellant at the scene.

The appellant and his co-defendant were tried jointly. The Defender's Association of Philadelphia, which represented the co-defendant, did not represent the appellant, because of a conflict of interest which became

[ 457 Pa. Page 70]

    apparent prior to trial. Counsel for the appellant, however, was not appointed until fifteen minutes before the trial. Prior to this time, the appellant had not been interviewed by any attorney about the charges against him. During the fifteen minute period, the appellant informed his counsel that he had not been involved in the shooting. He said he was with friends at another location at the time of the incident. The appellant testified at his PCHA hearing that defense counsel did not follow through with an investigation of the appellant's whereabouts at the time of the shooting; nor did defense counsel ask appellant for the names or ...


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