Appeal from order of Court of Common Pleas of York County, Jan. T., 1971, No. 189, in case of Commonwealth of Pennsylvania v. Eugene Washington.
Hugh S. Rebert, Assistant Public Defender, for appellant.
Kenneth J. Sparler, Assistant District Attorney, and Donald L. Reihart, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Van der Voort, J., dissents.
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On October 21, 1971, a jury found appellant and two co-defendants, Eddie Carroll and Henry Padgett, guilty of robbery, assault and battery with intent to rob, aggravated assault and battery, and assault and battery. On October 30, 1972, after denial of post-trial motions, appellant was sentenced to one and one-half to three years' imprisonment, to be served after the expiration of a sentence of two and one-half to five years imposed on the same day on an unrelated armed robbery indictment. On appellant's direct appeal, we affirmed per curiam. Commonwealth v. Washington, 225 Pa. Superior Ct. 749, 306 A.2d 361 (1973).
In July, 1973, appellant filed a petition under the Post Conviction Hearing Act*fn1 alleging that his trial counsel, the then Chief Public Defender of York County, was ineffective in failing to give timely notice of an alibi defense, as was then required by Rule 312 of the Pennsylvania Rules of Criminal Procedure.*fn2 Counsel's omission precluded the alibi witness, Patricia Grimes, from testifying that she and appellant had been at her aunt's house at the time the robbery was alleged to have been committed.*fn3
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On October 2 and 17, 1973, a hearing was held on appellant's PCHA petition.*fn4 In denying the petition, the hearing judge held that the ineffectiveness claim had been waived since it had not been raised on direct appeal (Opinion of April 18, 1974, at 2). Since, however, appellant's counsel on the appeal had also represented him at trial, the ineffectiveness claim was properly presented in the PCHA proceeding, Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), and we shall therefore address it on the merits. We have concluded that appellant's trial counsel had no strategic basis for failing to give timely notice of an alibi witness, and that this failure cannot be said to be harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18 (1967). Consequently, since appellant was denied his constitutional right to the effective assistance of counsel, a new trial must be awarded.
The Commonwealth's only witness at trial was Frank Martin, the victim. Martin, an insurance agent, testified that on December 11, 1970, he was robbed and beaten by appellant and his co-defendants while he was making collections for an insurance company. Martin further testified that the incident had occurred approximately fifty to one hundred feet from an intersection, that the night was overcast, and that the street lights were illuminated. He made an unequivocal in-court identification of all three co-defendants (Trial Record at 6, 10).
The cross-examination of Martin by appellant's
[ 239 Pa. Super. Page 340]
counsel*fn5 demonstrates that the issue of identification was an important part of the defense's trial strategy. Thus on cross-examination the following facts were disclosed. On the evening of the day of the robbery, Martin was shown an array of fifty to sixty photographs but was unable to identify any of his assailants. Five days later, Martin was shown fifteen photographs, from which he identified appellant and co-defendant Padgett (Trial Record at 13-14, 17). Finally, on February 10, 1971, immediately prior to a scheduled lineup at the York County Jail, Martin was shown four photographs, from which he identified the three co-defendants. When defense counsel learned of this, he objected, and the lineup was cancelled (Trial Record at 16).
The February 10 identification had formed the basis for a pretrial motion to suppress identification. At a hearing on the motion, held on April 27, 1971, the alleged suggestiveness of the identification was explored in detail. Thus, the following exchange took place between Martin and defense counsel concerning the circumstances surrounding the photographic display at the York County Jail:
"Q. Isn't it a fact that when you went down to City Hall and Mr. Robertson [police detective] showed you these photographs he wanted to refresh your memory and ...