No. 1038 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 7603-1871/1876 of 1976.
Lawrence W. Richman, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
McEwen, Montemuro, and Hoffman, JJ.
[ 300 Pa. Super. Page 516]
This is an appeal from an order denying appellant's Post Conviction Hearing Act (PCHA) petition. Appellant contends that his PCHA counsel was ineffective in failing to call trial counsel as a witness and in failing to produce evidence to support the petition. Because the record is insufficient to determine the merits of these contentions, we must vacate the order of the lower court in part, and remand for an evidentiary hearing.
Appellant was convicted in a non-jury trial of conspiracy and five counts of robbery. On direct appeal, he alleged several instances of trial counsel's incompetence. We affirmed his conviction in Commonwealth v. Ramsey, 259 Pa. Superior Ct. 240, 393 A.2d 806 (1978). Appellant subsequently
[ 300 Pa. Super. Page 517]
filed a PCHA petition and an amended, counseled, petition alleging, inter alia, that trial counsel was ineffective. The lower court denied the petition following a hearing at which appellant was the only witness called by his counsel. Appellant was appointed new counsel to pursue this appeal.
Appellant contends that his PCHA counsel was ineffective in not calling trial counsel as a witness and in failing to present evidence substantiating the other allegations of error in the PCHA petition.*fn1 In determining counsel's effectiveness, "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). Although the Commonwealth correctly notes that many of the issues raised in appellant's PCHA petition were finally litigated in his direct appeal,*fn2 see Commonwealth v. Butler, 495 Pa. 82, 432 A.2d 590 (1981), several issues had not been previously raised and are ripe for adjudication. The PCHA petition alleged that trial counsel was ineffective in failing to: (1) sever the trial from that of his co-defendants; (2) prepare adequately or ask for a continuance to have time to prepare;
[ 300 Pa. Super. Page 518]
(3) present any defense; and (4) review the pre-sentence report and advance an argument at sentencing. Despite raising these new allegations, PCHA counsel did not call trial counsel as a witness, nor did he present any evidence other than appellant's testimony to substantiate his claims. Trial counsel's testimony would certainly be crucial in determining his effectiveness.*fn3 The record is insufficient, however, to permit us to determine whether PCHA counsel had some reasonable basis for his actions. Accordingly, we must remand the case for an evidentiary hearing.
Order of the lower court affirmed in part and vacated and remanded in part for an evidentiary hearing consistent with this ...