No. 177 Special Transfer Docket, No. 178 Special Transfer Docket, Appeal from the Order of Court of Common Pleas of Philadelphia County, Criminal Section, at No. 1010, May Term, 1972, No. 1011, May Term, 1972.
Robert W. O'Donnell, Philadelphia, and with him Thomas J. Hines, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth appellee.
Wieand, Nix and Wekselman, JJ.*fn*
[ 269 Pa. Super. Page 465]
Appellant was convicted by a Philadelphia jury of first degree murder, conspiracy and carrying a firearm in a public place in connection with the shooting death of James Robinson. In a direct appeal to the Supreme Court, his judgment of sentence -- life imprisonment -- was affirmed. Commonwealth v. Hampton, 462 Pa. 322, 341 A.2d 101 (1975). Subsequently, appellant filed a PCHA petition alleging ineffectiveness of his trial counsel. After an evidentiary hearing, the petition was dismissed and now forms the subject of this appeal.
Appellant raises two instances of trial counsel's ineffectiveness. The first concerns trial counsel's failure to
[ 269 Pa. Super. Page 466]
cross examine a prosecution witness -- Delores Robinson, the wife of the victim -- because he did not have the notes of testimony from the preliminary hearing at which Mrs. Robinson's testimony differed from that which she gave at trial. This same contention was raised and found to be without merit in appellant's direct appeal to the Supreme Court. See 462 Pa. at 329-30, 341 A.2d at 104-05. Accordingly, this issue has been finally adjudicated and cannot be relitigated through a PCHA petition. Act of January 25, 1966, P.L. 1580 (1965), §§ 3, 4, 19 P.S. §§ 1180-3(d), 1180-4(a)(3) (Supp.1979-80).
Appellant's second instance of counsel's alleged ineffectiveness concerns counsel's failure to investigate, interview, or subpoena five potential witnesses, namely, appellant's wife, appellant's brother, Smokey Miller, Jerry Allison (or Allen), and Barbra Dennis.*fn1 Appellant's wife had also been indicted in connection with the incident and her counsel informed appellant's counsel that she would not appear and testify on appellant's behalf. Trial counsel requested appellant to bring his brother for an interview, but appellant declined to do so. Trial counsel was unable to locate Miller, the actual shooter, and denied that appellant ever mentioned Allison or Dennis. The PCHA court held that "[w]e do not believe defendant's testimony that two witnesses would testify in such a manner as to exculpate him from guilt. On the contrary, we are convinced and find as a fact that such testimony is not credible." Appellant has not offered any arguments attacking the validity of these findings. Under these circumstances, we find that this issue is without merit.
Justice ROBERT N. C. NIX, Jr. of the Supreme Court of Pennsylvania, and Judge I. MARTIN WEKSELMAN of the Court of Common Pleas of Allegheny ...