Hardy Williams, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
On October 1, 1973, appellant John Abney was found guilty after a non-jury trial of murder in the second degree, aggravated assault and criminal conspiracy. After post-trial motions were denied and judgment of sentence of two to fifteen years imprisonment imposed, direct appeal was taken to the Superior Court. The appeal was transferred to the Supreme Court because of our jurisdiction in homicide cases.*fn1 While the appeal was pending appellant petitioned this Court to remand the case for an evidentiary hearing. The Commonwealth consented to the request for remand. On September 24, 1974, this Court entered a per curiam order remanding the case. This appeal was taken following denial of post verdict relief. Appellant alleges that his trial counsel was ineffective.*fn2 We agree, reverse the judgment of sentence and grant a new trial.
On June 10, 1973, Henry Amason was attacked and beaten by a group of young people as he walked along a street in Philadelphia. A few days later Amason died from head injuries suffered in the attack.
Minutes after the attack, appellant, who was then sixteen years old, was arrested while standing on a street corner near the scene of the attack. An eyewitness to the attack, James Artison, was accompanying police on a drive through the area when he spotted appellant and identified him as one of the assailants.
Shortly after the attack, police questioned and took a statement from a ten year old girl who was an eyewitness to the incident. Although the girl gave a statement which was false insofar as she tried not to inculpate her uncle who later plead guilty to the homicide, the witness stated that she did not see appellant at the scene of the crime. There is a dispute concerning whether police made known to counsel that this young eyewitness offered evidence favorable to appellant. The post-conviction hearing Court found that this witness was known to counsel before trial.
Through the diligent efforts of appellant's mother defense counsel was able to locate other eyewitnesses before trial. One eyewitness, a Mr. Hendricks, told appellant's mother and trial counsel that he was with Artison at the time of the attack. He said he saw three people involved, none of whom fit appellant's description. Trial counsel testified at the post-conviction hearing that he spoke with Hendricks the day before the trial. He said Hendricks did not want to testify because he was scared, but also said that Hendricks did not retract his earlier statement favorable to appellant.
Appellant's mother repeatedly contacted trial counsel and police to provide them with the fruits of the inquiries she had been making in the neighborhood. Mrs. Abney believed that if she could locate the assailants her son would be released. Our review of the record indicates that Mrs. Abney was instrumental in leading police to Gary and Melvin Johnson who later plead guilty.*fn3 She also uncovered the ...