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decided: December 21, 1979.


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*

Author: Per Curiam

[ 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 n.8, 235 A.2d at 353 n.8)). However, "in examining the alternatives, a court may not utilize a harmless error analysis, and the alternatives must be examined only as a means of determining

[ 273 Pa. Super. Page 150]

    whether the course chosen had some reasonable basis." Badger, supra, 482 Pa. at 244, 393 A.2d at 644.

In Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976), the appellant alleged that his trial counsel was ineffective, inter alia, for failing to question eyewitnesses. Trial counsel explained his failure to interview the witnesses by stating that on the basis of one witness' testimony at the preliminary hearing and a conversation with appellant, he concluded that the witnesses were hostile. In holding that appellant's trial counsel was constitutionally ineffective, our Supreme Court stated:

However hostile these witnesses may have appeared to be, there is no basis for the decision neither to interview them nor to attempt to do so. While hostile witnesses at trial may have presented added difficulties to appellant's case, the question here is the decision not to interview them, not the decision to refrain from calling them at trial. Accordingly, there was no danger of hostile witnesses inflaming a jury during an interview to determine what each saw and their degree of potential hostility. Rather, the value of the interview is to inform counsel of the facts of the case so that he may formulate strategy. Perhaps, after questioning these witnesses, counsel may have concluded that the best strategy was not to call them due to hostility and, as a matter of strategy, that decision on counsel's part would not be subject to a claim of ineffective assistance of counsel. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). However, no such claim of strategy can be attached to a decision not to interview or make an attempt to interview eyewitnesses prior to trial. Therefore, no reasonable basis designed to effectuate [appellant's] interest can be attributed to counsel's failure to question these witnesses or at least make a reasonable attempt to do so.

Id., 467 Pa. at 475, 359 A.2d at 374-75. See also Commonwealth v. Lochman, 265 Pa. Super. 429, 402 A.2d 513 (1979) (trial counsel not ineffective where he attempted to interview eyewitnesses but was unsuccessful because their parents would not permit an interview).

[ 273 Pa. Super. Page 151]

In the instant case, the Commonwealth first contends that trial counsel was not ineffective because appellee has not shown that trial counsel's conduct prejudiced him. This contention is without merit because a finding of ineffectiveness of counsel does not require a showing of prejudice. Commonwealth v. Badger, supra.

The Commonwealth also contends that Commonwealth v. Mabie, supra, does not apply to the instant case because trial counsel in this case made reasonable attempts to interview witnesses. However, the only evidence of trial counsel's attempts to interview witnesses is his own vague statement that he discussed the case with appellee's family and unsuccessfully attempted through the family to have some of the witnesses come in. Trial counsel's statement was contradicted by appellee's mother and sisters. Furthermore, even accepting counsel's statement as true, we conclude that such "attempts" to interview witnesses were not reasonable. We therefore hold that appellee was denied effective assistance of counsel at trial.*fn3

*fn* Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania, and Judge Warren K. Hess of the Court of Common Pleas of Berks County, Pennsylvania, are sitting by designation.

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