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decided: September 27, 1976.


Appeal from the Order dated September 9, 1975, of the Court of Common Pleas, Trial Division,/Criminal Section, of Philadelphia County, at No. 359 April Term, 1973. No. 135 October Term, 1976.


John W. Packel, Asst. Public Defender, Chief, Appeals Div., Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, P. J., and Price and Van der Voort, JJ., dissent.

Author: Jacobs

[ 242 Pa. Super. Page 100]

Appellant, after a jury trial in August of 1973, was found guilty of assault and battery, aggravated robbery, and corrupting the morals of a minor. Post-trial motions were filed by appellant's appointed trial counsel, but argued by appellant's second appointed attorney, as appellant's trial counsel was relieved of his assignment.*fn1 Post-trial motions were denied on March 26, 1974, and appellant was sentenced to a term of incarceration of four to ten years. No direct appeal from the judgment of sentence was taken, and on April 11, 1974 appellant filed a petition for relief under the Post Conviction Hearing Act.*fn2

[ 242 Pa. Super. Page 101]

PCHA hearings were conducted on June 13, 1974 and June 16, 1974, at which appellant, his wife, his son and appellant's trial counsel testified. PCHA testimony was also taken on August 15, 1974, September 20, 1974, and October 15, 1974. Appellant was represented by a member of the Defender's Association throughout the PCHA proceedings, and is presently represented by the same attorney. By order of December 11, 1974, appellant was granted the right to file a direct appeal nunc pro tunc, however, the petition for PCHA relief was otherwise denied.

On May 6, 1975, a Joint Petition for Remission of the Record was filed, and, by order dated May 19, 1975, we remanded the record for further proceedings on the PCHA petition.*fn3 Upon remand, the court below, in a conclusory opinion on an issue of ineffective representation, found that trial counsel "ably and vigorously represented the defendant," and that appellant was not denied the effective assistance of counsel. The court then reaffirmed appellant's right to file a direct appeal nunc pro tunc. The instant appeal followed in which the appellant submits allegations of trial error, and the issue of ineffective representation,*fn4 the former pursuant to his right to file

[ 242 Pa. Super. Page 102]

    an appeal nunc pro tunc. We focus only on the ineffective representation challenge, and grant the appellant a new trial.

An evaluation of counsel's stewardship of his client's case is always one of the most formidable and troublesome inquiries an appellate court encounters.*fn5 For it would be a rare breed of litigator who, looking back upon his representation in a particular case, would be completely satisfied with his advocacy. It is precisely with these thoughts in mind 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." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-53 (1967) (emphasis original) (footnote omitted). Applying this well-established standard, after independent and thorough review of the trial record and the notes of testimony of the PCHA hearings, we are constrained to conclude that appellant was deprived of effective representation. The nature of the theory upon which we base this conclusion requires a thorough explication of the case against the appellant.

The incident out of which the charges against the appellant arose occurred on the evening of January 2, 1973 about 9:30 P.M. On that evening, the complainant in the case at bar was returning home from a supermarket when he was stopped by a man who grabbed his hand and wished him a Happy New Year. The man was very persistent

[ 242 Pa. Super. Page 103]

    and shook the complainant's hand for about a minute. N.T. at 11. As the complainant was able to "pull away" from this man, he was jumped from the rear by four youths who knocked him to the ground and went through his pockets. The complainant testified, at the appellant's trial, that when the youths fled he noticed that the man who had stopped him was standing about fifty feet away watching the entire incident.*fn6

A few minutes after the attack the police came upon the scene. None of the officers was called to testify, and it is at this juncture in the recitation of the facts that we encounter some difficulty.*fn7

The police were able to immediately apprehend one of the youths, but the other three temporarily avoided capture. While patrolling the area for the three youths, the investigating officers received a radio report of a burglary at 4562 North Smedley Street. Responding to the broadcast, the police entered the residence on Smedley Street whereupon they confronted three youths. The appellant was also in the house. The three youths were taken into custody, and the appellant was brought to the police station to prosecute the youths for the burglary of his home.*fn8

[ 242 Pa. Super. Page 104]

At the appellant's preliminary hearing, and again at his trial, the complainant testified that he identified the appellant at the police station. See note 6 supra.

Again, the facts become difficult to sort out. The police reports make no mention of the complainant's identification of the appellant.*fn9 The police reports do show that the four youths gave statements to the police which statements in essence admitted the robbery.*fn10 The youths also told the police that the owner of the house at 4562 North Smedley Street, whom they called "Mr. Goodie," set up the robbery. However, appellant was not arrested that evening; he was not arrested until February 21, 1973.

Trial commenced on August 15, 1973 with the Commonwealth's case consisting of the testimony of two witnesses, the complainant and Carl Odom, one of the four youths who admitted participation in the robbery.

The essence of the complainant's testimony we have already summarized in the recitation of the facts. The complainant was stopped by a man who grabbed his hand, detained him for about a minute, and repeatedly wished him Happy New Year. He pulled away and was immediately attacked by four youths. As the youths fled, he saw the man standing about fifty feet away watching the entire incident. He then testified that while at the station he identified, from clothing worn and features, appellant as the man who stopped him.

[ 242 Pa. Super. Page 105]

Certainly, this testimony, standing alone, would not be sufficient to convict the appellant. The complainant did not testify that he was struck by the appellant, that the appellant called out for the youths to attack him, or that there was any other connection between appellant and the youths. We make this observation because after a reading of the entire record it is apparent that the crucial testimony in the case was that of Carl Odom, one of the attackers, and it is in the cross-examination of Carl Odom that we find appellant was denied effective representation.

The essence of Carl Odom's testimony was that the appellant set up the robbery. He testified that the appellant, known to the youths as "Mr. Goodie," came to a park where the youths usually gathered, and shortly thereafter the youths and appellant got into appellant's car. They drove to a bar and Odom testified that the appellant told them that "he was going to make us get some cash, he needed it." N.T. at 28. The testimony was that the appellant went into the bar, came out immediately, and said to the youths "[y]ou so and so better get me some cash money, and I mean now." N.T. at 29.*fn11 Then the appellant went across the street, approached the complainant, shook his hand, wished him Happy New Year, and "grabbed the man by his arm, and that's when he told us to grab him and get the money." N.T. at 30.*fn12 He further

[ 242 Pa. Super. Page 106]

    testified that as they fled the appellant came around the block and picked three of them up in his car, drove them to Smedley Street, and told them, when the police came, to act as if they had been there all evening.

With this rendition of the "facts" as Carl Odom recalled them, appellant's trial counsel began his cross-examination. It is counsel's cross-examination that is the gravamen of the ineffective representation ...

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