Stephen A. Sheller, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., John H. Isom, Asst. Dist. Atty., A. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Appellant Harry Twiggs was arrested on January 5, 1972, for the murder of Thomas Cirwithian. Thrice a jury was empanelled to try Twiggs. The first jury could not reach a verdict, and the court declared a mistrial. Appellant's second trial also ended in a mistrial when appellant was wounded by a sheriff as he tried to escape from the courtroom. The third jury convicted appellant of first degree murder and the court sentenced him to life imprisonment. Appellant's trial counsel filed post-trial motions, which were denied. New counsel was appointed to represent Twiggs on appeal. This appeal ensued.*fn1
In this appeal, Twiggs contends that his trial counsel was ineffective.*fn2 Because on this record we cannot resolve this claim, we remand to the trial court for further proceedings.
Analysis of Twiggs's claim requires review of the Commonwealth's and defendant's conflicting versions of the facts. Gerald Bethea, the Commonwealth's eyewitness, related that the events leading to the shooting began on Christmas Eve, 1971, when appellant and a companion robbed certain personal belongings from the Philadelphia apartment of Thomas Cirwithian. Bethea, a friend of Cirwithian, was in the apartment at the time of the robbery. When Bethea told Cirwithian of the robbery, Cirwithian obtained a pistol from a friend and set out to locate the robbers. This venture proved unsuccessful. On New Year's Day, 1972, Cirwithian and Bethea, while driving through West Philadelphia observed Twiggs board a bus. They followed the bus and when appellant got off, Cirwithian left the car and confronted Twiggs. A scuffle resulted and both men drew their guns. As Cirwithian ran for his car, Twiggs shot at him. Twiggs chased Cirwithian to his car, overtook him and shot Cirwithian in the head at point-blank range.
Appellant's version of these events is materially different. Twiggs contends that after he left the bus, Cirwithian accosted him and threatened him with a drawn pistol. Twiggs attempted to disarm his assailant and, during this scuffle, the gun discharged. Appellant succeeded in taking the gun from Cirwithian. As Twiggs attempted to flee, he accidentally fired the gun a second time. The defense maintained that one of these two inadvertently fired shots killed the victim.
The only eyewitnesses to the shooting who testified were appellant and Bethea. Thus, determination of guilt or innocence turned largely on the credibility of these two witnesses. Appellant's defense, therefore, consisted almost entirely of an effort to impeach Bethea.
Appellant's claim of ineffective trial counsel is based upon trial counsel's failure to secure the testimony of Irving Gilmore. ...