No. 1079 April Term 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County Criminal Division at No. CC-7602441.
Elmer S. Beatty, Jr., Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Van der Voort, Spaeth and Watkins, JJ. Watkins, J., dissents.
[ 277 Pa. Super. Page 163]
This is an appeal from an order denying post-conviction relief. Appellant's contention is that his trial counsel was ineffective.
Appellant's trial was before a judge sitting without a jury. The facts developed at trial were as follows. On March 16, 1976, appellant, armed with a gun and his face masked by a cap, entered a liquor store in Pittsburgh and ordered a clerk to fill a paper bag with money. Observing police outside the store, appellant took the bag of money, put his hand around the clerk's throat, and with his gun to the clerk's head, left the store, using the clerk as a shield against the police. The clerk was dragged backwards for several blocks, until appellant fired his gun at the police, giving the clerk an opportunity to get free. Appellant was subsequently wounded and apprehended by the police.
[ 277 Pa. Super. Page 164]
The trial judge convicted appellant of robbery,*fn1 kidnapping,*fn2 and aggravated assault.*fn3 Appellant filed a motion in arrest of judgment, but this later was withdrawn, and no direct appeal was taken.
On December 7, 1977, appellant filed a petition under the Post Conviction Hearing Act.*fn4 Among the allegations in the petition were the following:
4. Counsel failed to raise or put at issue the fact that Petitioner was under the direct influence of alcohol and narcotics at the time of the offenses occasioned and which had an impact upon the judgment and rationality of Petitioner and aided in any disposition he latently harbored to act criminally.
On April 18, 1978, the lower court held a hearing on the petition. On June 6, 1978, the court denied the petition. Appellant filed the present appeal and on September 19, 1978, the lower court filed its opinion.
In reviewing a contention that counsel was ineffective, we use a two tier analysis. First, we determine whether the claim that counsel is charged with not pursuing had "arguable merit." Where it is determined that the claim did have arguable merit, we proceed to the second tier, and determine whether counsel's failure to pursue the claim had any reasonable basis. Where no reasonable basis appears, the conclusion follows that the defendant was denied his right to effective counsel. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Ramsey, 259 Pa. Super. 240, 246, 393 A.2d 806, 809 (1978).
[ 277 Pa. Super. Page 165]
In its opinion the lower court states that evidence that appellant was intoxicated was "irrelevant." For this proposition the court cites 18 Pa.C.S.A. § 308 and Commonwealth Page 165} v. Pickett, 244 Pa. Super. 433, 368 A.2d 799 (1976). (Record at 56a) If the lower court were correct in this statement, we could reject without further consideration appellant's contention that his trial counsel was ineffective, for a claim supported by irrelevant testimony could not have "arguable merit." In fact, however, the lower court's statement is incorrect.
Effective April 7, 1976, 18 Pa.C.S.A. § 308 was amended to provide:
Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.
Had the incident in question here occurred on or after April 7, 1976, the lower court would have been correct in stating that evidence that appellant was intoxicated was irrelevant. However, the incident occurred on March 16, 1976. On that date, 18 Pa.C.S. § 308 provided:
Intoxication or drugged condition are not, as such, defenses to a criminal charge; but in any prosecution for any offense, evidence of intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to negative an element of the offense.
Consequently, if appellant's trial counsel had evidence that appellant was at the time of the incident intoxicated or in a drugged condition, that evidence might have been "relevant to negative an element" of one or more of the offenses-robbery, kidnapping, and aggravated assault-with which appellant was charged.
Our decision in Commonwealth v. Pickett, supra, is not contrary to but rather confirms this conclusion. In Pickett we ordered a new trial because in a burglary and theft case, the lower court had refused to submit a requested point for charge on intoxication as a possible defense. Noting that
[ 277 Pa. Super. Page 166]
the charges arose out of an incident occurring before April 7, 1976, we said:
Our failure to remand for a new trial would involve the most obvious violation of the constitutional provision against ex post facto laws. Prior to April 7, 1976, a person was not guilty of a crime if he were sufficiently intoxicated so that he could not form the requisite intent. The legislature had the authority to change the law, but not as applied to offenses committed ...