No. 2408 Oct. Term, 1978, APPEAL FROM THE AUGUST 23, 1978, ORDER OF THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION, CRIMINAL SECTION, GRANTING POST CONVICTION RELIEF IN THE NATURE OF A NEW TRIAL AT NO. 811, NOVEMBER TERM, 1975.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Joseph C. Santaguida, Philadelphia, for appellee.
Brosky, Hoffman and Cirillo,*fn* JJ.
[ 282 Pa. Super. Page 16]
On October 7, 1975, the appellee-defendant was arrested in connection with a fatal shooting that occurred after an
[ 282 Pa. Super. Page 17]
argument between the decedent, Alvin Jones, and the appellee. Rainey, the appellee, was charged with murder, criminal conspiracy, possession of an instrument of crime and possession of a prohibited offensive weapon. The jury found the appellee not guilty on the murder indictment, but guilty of conspiracy, and of the instruments of crime and offensive weapon charges. Post-verdict motions were filed. The court granted appellee's motion in arrest of judgment on the conspiracy conviction, and otherwise denied post-verdict motions. The appellee was sentenced to serve a term of imprisonment of two and one half (2 1/2) to five (5) years. The appellee appealed the conviction of the weapons charges to this court, which affirmed the judgment of the trial court. Commonwealth v. Rainey, 246 Pa. Super. 655, 372 A.2d 848 (1977). The appellee's petition for allocatur to the Supreme Court of Pennsylvania was denied on November 11, 1977.
The appellee then petitioned for relief under the Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq., maintaining that he had been deprived of his constitutional right to representation by competent trial counsel. He based this assertion on the fact that trial counsel had been supplied with the names of alleged eye witnesses, but that counsel failed to interview these witnesses prior to trial, or to call them to testify on the appellee's behalf.
The trial court agreed that the appellee had not been effectively represented by trial counsel and granted the relief prayed for in the PCHA Petition. It is from this determination that the instant appeal is taken by the Commonwealth.
It is the position of the Commonwealth that the court below erroneously ruled that trial counsel was ineffective for failing to interview the witnesses. The Commonwealth asserts that the mere failure to interview potential witnesses does not, per se, constitute ineffective assistance and that appellee must prove that the testimony of the witnesses would have substantially aided his defense. The Commonwealth maintains that the appellee failed to meet this burden of proof in the court below, therefore his PCHA Petition was improperly granted.
[ 282 Pa. Super. Page 18]
In determining the claim of ineffective assistance of counsel, the standard has been set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, ...