No. 76 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, Imposed on Bill of Indictment No. 436, 1975.
J. Richard Oare, Jr., Assistant Public Defender, York, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Price, J., concurs in the result.
[ 251 Pa. Super. Page 367]
This appeal arises from Appellant Jerry Fallings' conviction, in a jury trial, of burglary, and from the denial of post trial motions for a new trial and in arrest of judgment. Appellant asserts that the trial court erred in refusing to grant a motion for continuance made at the time of trial and that his trial counsel was ineffective in that counsel failed to seek compulsory process to secure the attendance of a material witness at trial.*fn1 We reverse and remand for a new trial because we agree that appellant was denied effective assistance of counsel;*fn2 we need not, therefore, address the question of whether the continuance was improperly denied.
On the evening of January 7, 1975, Detectives Michael DeFrank and Henry Heisey of the Harrisburg Police Department, while on routine patrol, spotted a vehicle matching the description of a car seen leaving the scene of a robbery which had occurred a short time earlier. The officers pulled up beside the car at a red light and recognized appellant, for whom they had an arrest warrant issued in connection with a series of unrelated robberies, at the wheel. As they got out of their vehicle and made their way to appellant's automobile, appellant suddenly accelerated towards them, striking the police car and an oncoming vehicle before finally coming to rest against two parked cars. Detective Heisey fired at appellant, wounding him in the left shoulder. Appellant nevertheless managed to escape and
[ 251 Pa. Super. Page 368]
was not apprehended until the next day. A passenger in appellant's car, Nathaniel Sutton, was arrested at the scene and a battery charger, engine analyzer and a quantity of homemade wine were found in the back seat. These items were later reported stolen from a nearby service station.
Nathaniel Sutton pleaded guilty to the burglary on March 6, 1975, and was placed on immediate parole on the condition that he leave the Commonwealth and return to North Carolina. Appellant Fallings pleaded not guilty and his trial was set for June 2, 1975; it was continued to June 20, 1975, because of a crowded court schedule. Prior to the original trial date, appellant's trial counsel made several attempts to secure Sutton's presence at trial by mailing a registered letter to him, which was never answered, and by telephoning various of Sutton's friends. Trial counsel never caused a subpoena to be issued or served in order to ensure Sutton's presence at trial.
Although appellant's trial counsel had heard that Sutton had appeared at the Dauphin County Court House on June 2nd -- the original trial date -- he made one further unsuccessful effort to guarantee that the witness would be present on June 20th. On June 4, 1975, he filed a petition to set bail for a material witness*fn3 which was denied following a hearing. At trial on June 20, 1975, when Sutton failed to appear, trial counsel advanced an oral motion for continuance which was also denied.
Appellant contends that his trial counsel's failure to cause a subpoena to be served upon Sutton denied him his constitutionally guaranteed right to effective assistance of counsel.*fn4 ...