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COMMONWEALTH PENNSYLVANIA v. LINDA SUSAN SMITH. COMMONWEALTH PENNSYLVANIA (11/30/81)

filed: November 30, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LINDA SUSAN SMITH. COMMONWEALTH OF PENNSYLVANIA, V. LINDA SUSAN SMITH, APPELLANT



COUNSEL

Michael E. Moyer, Assistant District Attorney, Allentown, for Commonwealth, appellant in No. 136 and for Commonwealth, appellee in No. 554.

Armando C. Salazar, Assistant Public Defender, Allentown, for Smith, appellant in No. 554 and for appellee in No. 136.

Hester, Cavanaugh and Van der Voort, JJ. Van der Voort, J., files a concurring and dissenting statement.

Author: Hester

[ 292 Pa. Super. Page 445]

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Lehigh County. The procedural history and facts relevant to the issue on appeal are as follows:

Appellant was convicted by a jury of robbery, theft, recklessly endangering another person and terroristic threats. Post-trial motions for a new trial and in arrest of judgment were timely filed, and the Motion for New Trial was denied. The Motion in Arrest of Judgment was granted as to the conviction for Recklessly Endangering Another Person. After appellant was sentenced, this timely appeal followed.

Appellant contends her trial counsel rendered ineffective assistance by needlessly bringing out the fact that one of the alibi witnesses had a criminal record.

Our Supreme Court has held that counsel is not ineffective whenever there is some reasonable basis for his actions designed to effectuate his client's interests. Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

As her defense, appellant presented only the testimony of two alibi witnesses. She did not testify in her own defense. Upon direct examination of one of the alibi witnesses, trial counsel voluntarily revealed a prior conviction for corruption of a minor, which had allegedly occurred during the mid-fifties, some 23 years prior to the date of trial. On cross-examination, the witness volunteered that the offense was, in fact, statutory rape.

Appellant argues that the offense does not involve dishonesty or false statements and could not have been used by the Commonwealth for impeachment purposes. Commonwealth v. Moore, 246 Pa. Super. 163, 369 A.2d 862 (1977).

[ 292 Pa. Super. Page 446]

In Commonwealth v. Reidenbaugh, 266 Pa. Super. 315, 404 A.2d 697 (1978), trial counsel elicited the fact that the defendant had prior convictions for fornication and corrupting the moral of a minor. There, we remanded the case for an evidentiary hearing to determine counsel's reasons for introducing the testimony. We held that counsel may have done so in order to bolster the credibility of the defendant.

Here, however, the alibi testimony could have been crucial to appellant's defense and was submitted by a witness, not the defendant. The alibi of appellant was further substantiated by another witness, (the wife of the prior ...


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