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COMMONWEALTH PENNSYLVANIA v. GERARD PAUL MCKENNA (06/30/82)

decided: June 30, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
GERARD PAUL MCKENNA, APPELLANT



No. 80-3-549, Appeal from the Opinion and Order of the Court of Common Pleas of Bradford County dated April 22, 1980 at Nos. 49-49 1/2 October Term, 1973 denying relief under the Post Conviction Hearing Act.

COUNSEL

William C. Costopoulos, Lemoyne, for appellant.

Arthur R. Shuman, Jr., Sp. Prosecutor, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., files a dissenting opinion, in which O'Brien, C. J., joins. Flaherty, J., files a dissenting opinion.

Author: Mcdermott

[ 498 Pa. Page 418]

OPINION

This is an appeal from the order of the Honorable Evan S. Williams, President Judge of the Court of Common Pleas of Bradford County, denying appellant relief under the Post Conviction Hearing Act ("PCHA").*fn1

On December 9, 1974, after a lengthy jury trial, appellant, Gerard Paul McKenna, was convicted of rape and first degree murder in connection with the brutal slaying of a sixteen year-old girl. The jury prescribed the death penalty for appellant's murder conviction.*fn2 On direct appeal to this Court, we upheld both convictions, but vacated appellant's death sentence and remanded the case for resentencing on the murder conviction. See Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978) (" McKenna I "). Appellant was sentenced to a term of life imprisonment for his first degree murder conviction on April 17, 1978. These PCHA proceedings followed.

Post conviction hearings were held on August 21 and October 3, 1979. The court of common pleas, per President Judge Williams, denied the requested relief and appellant appealed to this Court. The Commonwealth and appellant submitted the case on their briefs,*fn3 and, on January 29, 1982, we filed an opinion and order reversing the PCHA court. We subsequently granted the Commonwealth's petition for reconsideration and, on April 2, 1982, we ordered that the parties prepare the case for oral argument during our April session. See Pa.R.A.P. 2311(b). Having carefully considered the entire record, the briefs and the able oral arguments

[ 498 Pa. Page 419]

    of both sides, we now vacate our order of January 29, 1982 and affirm the order of the PCHA court.*fn4

Before this Court appellant most strenuously argues his claim that trial counsel was ineffective in failing to present a material and favorable defense. The gravamen of this contention is that trial counsel had material witnesses to offer in support of appellant's alibi defense but did not call them, because he believed a new trial would be granted on appeal.*fn5

At the PCHA hearing, appellant's chief trial counsel, Thomas Walrath, Esquire,*fn6 did in fact testify that he believed the errors of the trial court sufficient to require a new trial and that he had, therefore, substantially abandoned the alibi defense.*fn7 See generally, N.T. PCHA 8/21/79

[ 498 Pa. Page 420]

    pp. 60-80. We shall refrain from comment, for the purposes here, upon such unprofessional conduct, as there is no merit to appellant's contentions.

Defense counsel Walrath testified that, if he had fully presented the alibi defense, he would have called Dr. Irving Sopher, the defense's forensic pathologist, to fix the time of death, a consideration relevant to the alibi. Dr. Sopher was called at the PCHA hearing, not by appellant, but by the Commonwealth, and he testified as follows:

[SPECIAL PROSECUTOR]: Do you know why it was that you were not called as a witness in this case?

[DR. SOPHER]: I think one of the main . . . my main impression is after discussing with Mr. Walrath by phone as to whether I would be brought to testify or not was the fact that my testimony in view of the fact that I could not exclude a six-day post-mortem interval, that this would merely corroborate prosecution evidence in this particular case and that perhaps it may be in the best interest of the defendant that I not testify.

[I]t was the final decision of Mr. Walrath that my testimony in this case I think primarily would corroborate the prosecution evidence and would, therefore, substantiate the prosecution evidence on time of death and it may be in the best interest of the client that I not testify.

N.T. 10/3/79 pp. 83, 96 (emphasis supplied). The PCHA court, which heard all the evidence, expressly credited Dr. Sopher's assertion that his testimony would have merely corroborated the Commonwealth's position. Opinion of Williams, P.J., at 6. (Opinion filed April 22, 1980). Not only would Dr. Sopher have fortified the Commonwealth at trial, but he specifically contradicted Mr. Walrath's PCHA testimony as to the reason he was not called. The soundness of Judge Williams' findings on Dr. Sopher's credibility cannot

[ 498 Pa. Page 421]

    be faulted by reviewing the synthetic testimony of Mr. Walrath.*fn8

The same note of artificiality pervades Mr. Walrath's testimony concerning the contention that there were other exculpatory witnesses who might have been called, including appellant himself, State Trooper John P. George, Deputy Coroner Arthur B. King and "five or six other witnesses" whom Mr. Walrath ...


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