Nos. 338, 339 Special Transfer Docket, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, April Term, 1977, Nos. 1782-83, granting appellee a new trial.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Jack M. Myers, Philadelphia, for appellee.
Hoffman, Eagen and Hess, JJ.*fn*
[ 273 Pa. Super. Page 148]
The Commonwealth contends that the lower court erred in finding that appellee's trial counsel was ineffective for failing to interview witnesses and in granting appellee a new trial. We disagree, and, accordingly, affirm the order of the lower court.
On April 17, 1977, appellee was arrested and charged with murder, voluntary manslaughter, and involuntary manslaughter. In July 1977, appellee's mother retained an attorney to represent appellee. Following a non-jury trial, the lower court found appellee guilty of murder in the third degree. In November 1977, the lower court appointed appellee's present counsel to file and argue post verdict motions. The lower court thereafter held an evidentiary hearing on appellee's claim that his trial counsel was ineffective.
Appellee's trial counsel testified at the evidentiary hearing that appellee gave him the names of several persons who may have been involved in the incident. Trial counsel admitted that the testimony of three of these witnesses would be relevant to the case. All three of these witnesses were called by the Commonwealth to testify at the trial, and one of them claimed to be an eyewitness to the incident. Counsel stated that, based on an interview with appellee, he determined that the testimony of the other persons mentioned
[ 273 Pa. Super. Page 149]
by appellee would not be relevant to the case. Trial counsel did not interview any of the witnesses prior to trial,*fn1 nor did he hire an investigator to interview them. When asked if he attempted to interview anyone appellee told him might be helpful, trial counsel stated that he had "discussions" with appellee's family. He also stated that "we did attempt through . . . [appellee's] family to have some of these people come in. We were unsuccessful . . . ." However, appellee's mother and two sisters testified at the evidentiary hearing that trial counsel never asked them to investigate or obtain witnesses. Trial counsel stated that he did not hire an investigator to interview witnesses because he believed that they would be hostile and because he was not paid to hire an investigator.
The lower court concluded that appellee was denied effective assistance of counsel at trial*fn2 and granted appellee a new trial. This appeal by the Commonwealth followed.
"'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 interest.'" Commonwealth v. Hubbard, 485 Pa. 353, 356, 402 A.2d 999, 1001 (1979) (quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967)) (emphasis in original). "'A finding of ineffectiveness [can] never be made unless [it can be] concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.'" Commonwealth v. Badger, 482 Pa. 240, 244, 393 A.2d 642, 644 (1978) (quoting Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 605 ...