No. 280 January Term, 1979, Review of the order of the Superior Court of Pennsylvania No. 1483 October Term, 1977
Gary Kleitman, Norristown, for appellant.
Ronald T. Williamson, Chief, Appeals Div., Norristown, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.
On October 25, 1974, appellant was convicted by a jury of violations of The Controlled Substance, Drug, Device and Cosmetic Act.*fn1 Post-verdict motions were denied and the Superior Court affirmed the judgment of sentence. A petition for allowance of appeal was subsequently denied on February 11, 1977. Appellant then petitioned for relief under the Post Conviction Hearing Act*fn2 (PCHA). After an evidentiary hearing, at which appellant was represented by new counsel, the PCHA Court denied relief. The Superior Court affirmed the denial, Commonwealth v. Jones, 263 Pa. Super.Ct. 149, 397 A.2d 790 (1978) (Spaeth, dissenting joined by Jacobs, P.J.), and allocatur was granted on June 18, 1979.
On this post-conviction appeal, appellant claims that trial counsel was ineffective for failing to interview an eyewitness who allegedly would have provided exculpatory testimony had he been called to testify. Appellant maintains that there was no reasonable basis for trial counsel's failure to interview the witness and that this Court's decision in Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976) compels the grant of a new trial. We agree.
The relevant facts are as follows. Appellant was convicted for allegedly selling four packets of heroin to an undercover policeman. The Commonwealth's evidence at trial consisted of testimony by the undercover policeman that appellant sold him the heroin for $40 and that the transaction was arranged by George Paine, an informant, who introduced appellant to the undercover officer. Appellant, the sole defense witness, denied selling heroin to the officer and alleged that Mr. Paine was an eyewitness to the entire course of events. Mr. Paine was not called to testify at trial, nor did trial counsel interview this prospective witness prior to deciding not to call him to testify at trial.*fn3
At the outset, we must emphasize the well-established standard "that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) (emphasis in original). Using this standard, and after examining the testimony adduced at the PCHA hearing, we find that trial counsel in this case was not constitutionally effective.
Trial counsel testified at the PCHA hearing that although Mr. Paine was made available to him by the Commonwealth, he was reluctant to call him because he had no control over what ...