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COMMONWEALTH PENNSYLVANIA v. KENNETH WAYNE SMITH (07/03/80)

decided: July 3, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
KENNETH WAYNE SMITH, APPELLANT



No. 27 May Term 1979, Appeal from the Order of the Court of Common Pleas, York County, at No. 1556 October Session 1974

COUNSEL

Laurence T. Himes, Jr., York, for appellant.

Floyd P. Jones, Asst. Dist. Atty., York, for appellee.

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

Author: Eagen

[ 490 Pa. Page 383]

OPINION

In August 1975, Kenneth Wayne Smith, appellant, was convicted by a jury of murder of the first degree in connection with the homicide of Charles Jeffers. Post-verdict motions were denied, and Smith was sentenced to life imprisonment. On appeal, we affirmed the judgment of sentence. Commonwealth v. Smith, 477 Pa. 505, 384 A.2d 1202 (1978).

On September 18, 1978, Smith file a pro se petition under the Post Conviction Hearing Act [hereinafter: PCHA], Act of January 25, 1966, P.L. (1965) 1580, §§ 1 et seq., 19 P.S.

[ 490 Pa. Page 384]

§§ 1180-1 et seq. (Supp. 1979-80). Counsel was appointed, and after an evidentiary hearing, the petition was dismissed.*fn1 This appeal followed.

Smith claims he was denied effective assistance of trial counsel. Initially it is said counsel was ineffective for failing to "interview" Raymond "Chinee" Johnson and Derek Spells, both of whom had been tried and convicted prior to the Smith trial of participating with Smith in the murder of Jeffers. The record discloses that Smith's trial counsel had personal knowledge of statements given by Spells. They were inconsistent as to his involvement in the crime. Moreover, the statements implicated Smith in the killing. Trial counsel was also aware of statements given by Johnson to police following his arrest. These statements were inconsistent with what Johnson later said at trial under oath. With this knowledge, counsel concluded it would damage rather than help Smith's defense to call either Johnson or Spells as a trial witness. Under the circumstances, counsel's failure to "interview" these co-felons did not constitute ineffectiveness. Cf. Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977).

Smith next contends trial counsel was ineffective for failing to call a deputy sheriff to testify as a defense witness. In order to properly evaluate this contention, a brief review of Smith's trial strategy is in order.

One of the principle issues at trial was whether Smith was an accomplice to the killing of Jeffers. The victim suffered multiple stab wounds to the chest and extremities and a gunshot wound to the chest. Smith, Spells, and Johnson inflicted the stab wounds while Johnson alone inflicted the gunshot wound. The physician who autopsied the body of the victim stated the cause of death was either a stab or gunshot wound to the chest. Smith admitted stabbing the ...


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