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COMMONWEALTH PENNSYLVANIA v. PEARLIE DUBOSE (02/19/82)

filed: February 19, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
PEARLIE DUBOSE, JR., APPELLANT



No. 1029 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, At No. 48-51 February Term, 1974

COUNSEL

Harvey W. Robbins, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Van der Voort, JJ. Spaeth, J., concurs in result.

Author: Brosky

[ 295 Pa. Super. Page 334]

Appellant, DuBose, was convicted of rape, criminal conspiracy, possessing instruments of crime generally, possession of prohibited offensive weapons and involuntary sexual intercourse. Post-verdict motions were denied and a sentence was imposed amounting to multiple current terms of imprisonment of 7 1/2 to 20 years for rape, 7 1/2 to 20 years for involuntary sexual intercourse, 5 to 10 years for conspiracy, 2 1/2 to 5 years for possession of an instrument of crime. We affirmed the imposition of the judgment of sentence in Commonwealth v. DuBose, 239 Pa. Super. 712, 357 A.2d 198 (1976) (allocatur denied).

DuBose now seeks relief under the Post Conviction Hearing Act,*fn1 alleging ineffective assistance of counsel.*fn2 After a hearing at which DuBose's contentions were argued by new counsel, the P.C.H.A. court denied DuBose the relief he sought. DuBose appeals from that determination. We affirm the decision of the trial court.

Several questions, all concerning the effectiveness of trial counsel are raised on appeal. They are:

1. Was there a possibility of harm because the Defender's Association of Philadelphia represented the appellant and one or more other persons involved in this criminal incident?

2. Did defense counsel fail to provide competent representation in that he delayed interviewing and confirming the testimony of the alibi witnesses?

3. Did defense counsel fail to provide competent representation in that he failed to take photographs of the scene until six months after the incident?

[ 295 Pa. Super. Page 3354]

. Did defense counsel fail to provided (sic) competent representation inasmuch as he attempted to show the gang affiliation of alleged co-conspirators by introducing inadmissible Juvenile Court records rather than producing the alleged co-conspirators, or even attempting to produce them by subpoena, to testify about their gang affiliation?

5. Did the Court below err in not itself examining or in not allowing petitioner's counsel to examine the files of the District Attorney, which were subpoenaed by petitioner's counsel to enable petitioner's counsel to investigate the harm caused by the Defender's Association of Philadelphia representing one or more alleged perpetrators of the criminal incident?

In Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 234-235 (1981), our Supreme Court said:

"[B]efore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967), once it has been determined that the particular course of action chosen by counsel had some reasonable basis designed to effectuate his client's interests, counsel will be deemed constitutionally effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Additionally, there is a presumption in the law that counsel is effective, Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); thus, the burden of establishing ineffectiveness rests upon appellant. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

Our Supreme Court noted in Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979), that the Public Defender's Association of Philadelphia is a "law firm," Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974), and as ...


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