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COMMONWEALTH PENNSYLVANIA v. JAMES ROBERT KATONA (05/30/80)

decided: May 30, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JAMES ROBERT KATONA, APPELLANT



No. 337 JANUARY TERM, 1978, Appeal from Order of Superior Court at No. 1594 October Term, 1977 Affirming Judgment of Sentence of the Court of Common Pleas of Luzerne County at No. 709-A of 1976.

COUNSEL

Wallace C. Worth, Jr., Allentown, for appellant.

Joseph P. Giovannini, Jr., Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Flaherty

[ 489 Pa. Page 516]

OPINION OF THE COURT

Appellant, James Robert Katona, appeals from the Order of the Superior Court affirming per curiam the judgment of sentence of the Court of Common Pleas of Luzerne County. Appellant contends that his trial counsel was ineffective for failing to ascertain the existence of witnesses and to subpoena those witnesses and for failing to request a change of venue.*fn1

On May 26, 1976, appellant was convicted by a jury of failure to stop at the scene of an accident and failure to identify himself at the scene of the accident.*fn2 These charges arose out of a high speed chase which occurred on March 7, 1976 at approximately 7:35 p. m., in the city of Hazelton, Pennsylvania. The vehicle owned by appellant came to a stop after it had run into a parked car. Trooper Paulshock of the Pennsylvania State Police pulled his vehicle directly

[ 489 Pa. Page 517]

    behind appellant's vehicle and scribbled the license number. Trooper Paulshock alighted from his vehicle and approached the vehicle owned by the appellant; whereupon the driver of appellant's vehicle backed his vehicle into the police car twice and drove away. Trooper Paulshock testified that when he was about two feet from the door of appellant's vehicle he saw the profile of appellant illuminated by the high beams from the state police vehicle and a street lamp about twenty feet away. Based on this view, Trooper Paulshock later identified appellant at appellant's home.

The thrust of appellant's argument at trial was that the identifying officer's ability to identify the driver was not sufficient to establish that appellant was the driver of the vehicle.*fn3

Appellant apparently alleges that, during April 1976, appellant and his attorney met with Mr. James Walker,*fn4 who had information (a) that Trooper Paulshock's identification of appellant was based on a photographic display at the State Police Barracks and (b) that there were eye witnesses to the incident who "didn't want to get involved." The record shows that there were two disinterested eye witnesses who, arguably, could testify that the state policeman never went beyond the rear bumper of appellant's car before it pulled away, and that it was too dark for the policeman to have clearly observed the driver. Apparently, no witnesses were subpoenaed to testify on behalf of appellant.

In determining whether counsel's failure to secure the attendance of these witnesses constituted constitutionally ineffective assistance of counsel, we are guided by the standard established in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 ...


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