No. 50 and 58 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Denying Appellant's Petition for Post-Conviction Relief as of Nos. 628, 629, 632, December Session, 1964.
Defender Assn. of Phila., John W. Packel, Asst. Defender, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy and Larsen, JJ., filed dissenting opinions.
This is an appeal from an order of the Court of Common Pleas of Philadelphia County which denied appellant relief
under the Post-Conviction Hearing Act.*fn1 In view of our disposition of the case we need only consider appellant's claim that his two trial attorneys failed to provide effective assistance at trial, specifically in allowing, without objection, repeated references to statements of a co-defendant implicating appellant. For reasons which follow, we agree with appellant that trial counsel was ineffective and that appellant is entitled to the award of a new trial.
Appellant was arrested on December 8, 1964, and charged with murder, burglary and aggravated robbery arising from a robbery of a bar which occurred on November 4, 1964, during which a patron, Joseph Ambrose, was shot and killed by appellant. After trial by jury appellant was found guilty of murder of the first degree, aggravated robbery and burglary. He received a sentence of life imprisonment for the murder conviction and was sentenced to 10 to 20 years imprisonment on both the robbery and burglary indictments. The sentences were made to be served consecutively. Thereafter, appellant filed a direct appeal to this Court, wherein the judgments of sentence were affirmed. Commonwealth v. Witherspoon, 442 Pa. 597, 277 A.2d 826 (1971).*fn2 Subsequently, a petition was filed pursuant to the Post-Conviction Hearing Act*fn3 seeking relief. After a hearing the petition was denied and this appeal followed.
The record reflects that during the course of the trial repeated references were made to hearsay statements of
Ernest Satchell, a co-defendant, in which Satchell admitted his participation in the robbery and implicated appellant as the other participant and as the person who shot and killed the victim. At one point an objection was made, however the grounds offered for that objection was that defense counsel had not been afforded an opportunity to see Satchell's statement. Counsel was given an opportunity to review the statement and the objection was withdrawn.*fn4 At another point in the trial defense counsel requested that the complete statement of Satchell be read to the jury. After an objection by the prosecution and an off-the-record discussion with the court, the request was not pursued.
The examination and cross-examination of witnesses and the determination as to when to interpose objections are matters clearly within the province of trial counsel. See A.B.A. Standards Relating to the Prosecution's Function and the Defense's Function, § 5.2(b) (1971) (the decision on what witnesses to call, whether and how to conduct cross-examination . . . and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client). It is also apparent that this evidence was inadmissible hearsay and its admission violated appellant's constitutional right of confrontation. Commonwealth v. McDowell, 460 Pa. 474, 480, 333 A.2d 876, (1975); Commonwealth v. Ransom, 446 Pa. 457, 464 n. 4, 288 A.2d 762, 765 n. 4 (1972); Commonwealth v. Ellsworth, 409 Pa. 505, 513, 187 A.2d 640, 643 (1963); Commonwealth v. Epps, 298 Pa. 377, 380, 148 A.2d 523, (1930); Commonwealth v. Antonini, 165 Pa. Super. 501, 503, 69 A.2d 436, (1949).
This situation was further compounded by the failure of counsel to object to the prosecution calling Satchell as a witness to testify that he had entered a plea of guilty to murder generally and that the court en banc returned a verdict of murder of the first degree. Mr. Satchell ...