No. 1483 October Term, 1977, Appeal from Order of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 1816, April Term, 1974.
Gary Kleitman, Norristown, for appellant.
Robert A. Selig, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Jacobs, President Judge, joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 263 Pa. Super. Page 150]
Appellant, Harold Jones, raises only one issue in this appeal. Appellant argues that the lower court erred in denying his motion for post-conviction relief, which was based on alleged ineffective assistance of counsel. Review of the briefs and record convinces us that appellant's conviction should be affirmed.
The relevant facts are as follows. Appellant was arrested on May 15, 1974 for alleged violations of the Controlled
[ 263 Pa. Super. Page 151]
Substance, Drug, Device and Cosmetic Act. Trial commenced on October 24, 1974, during which appellant was represented by Samuel W. Salus, II, Chief Public Defender for Montgomery County. The jury returned a verdict of guilty on two counts of the indictment, though not guilty as to a third. Judgment of sentence was affirmed by this Court on October 18, 1976; petition for allocatur was denied by the Supreme Court. On January 31, 1977, a petition under the Post Conviction Hearing Act was filed.*fn* In this petition, appellant claimed that his trial counsel was ineffective in not calling a witness named George Paine to the stand. Appellant claims that Paine would have given testimony that would have supported appellant's trial testimony, in which he denied that he sold four packets of heroin to Trooper Charles Rodgers, who was then working as an undercover agent.
The lower court held a post-conviction hearing on April 12, 1977. At this hearing, appellant's trial counsel, Samuel Salus testified. Mr. Salus told the court that he tried to locate Mr. Paine prior to trial on two or three occasions. Mr. Salus said that he sent Mr. Deitelhauser, who worked at the Montgomery County Public Defender's Office, out to look for Mr. Paine. Mr. Deitelhauser called the Chester County Prison and was told that Mr. Paine was not there. Mr. Deitelhauser also went to another community to search for Mr. Paine. He also checked with the county detectives and was given no information regarding the whereabouts of Mr. Paine. Mr. Salus said that the last word that he heard on Mr. Paine was that a Mr. Tribble said that Paine was "on the streets of Philadelphia."
At the hearing, Mr. Salus was asked whether he felt that the presence of Mr. Paine was essential to appellant's trial. Mr. Salus said that at first he did but that after the trial opened and the Commonwealth's evidence came in, Mr.
[ 263 Pa. Super. Page 152]
Salus thought that Paine may have been the conduit who handled the money at the sale. Mr. Salus said that the Commonwealth's evidence was clear and indicated that Paine "was an on-site, in-person ...