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filed: August 27, 1982.


No. 2099 October Term, 1979, No. 2335 Philadelphia, 1981, Appeal from the Order and Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at No. 233 January Term, 1979.


Daniel M. Preminger, Philadelphia, for appellant.

Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Beck and Hoffman, JJ.

Author: Hoffman

[ 303 Pa. Super. Page 551]

Appellant contends that the evidence was insufficient to support his conviction for conspiracy and that his counsel was ineffective in failing to interview and call certain eyewitnesses. Although we find the evidence sufficient, we agree that counsel was ineffective and, accordingly, reverse

[ 303 Pa. Super. Page 552]

    the order and judgment of sentence of the lower court and grant a new trial.

On the evening of December 4, 1978, Robert Dolison approached the victim, James Helm, and his girlfriend, Myrtle Carter, and asked why Helm was carrying a baseball bat. Observing a group of youths on the corner, Helm replied that it was for protection from dogs roaming the neighborhood. A scuffle ensued between the two, and as the pushing continued, appellant ran by Ms. Carter's left side and punched Helm in the back of the head. Within seconds, Gregory Dolison ran by Ms. Carter's right side and stabbed Helm in the back. Appellant and Gregory then ran off in the same direction. Helm subsequently died and appellant was charged with murder and criminal conspiracy. After a jury trial, he was acquitted of murder, but found guilty of conspiracy and sentenced to five-to-ten years imprisonment. Following the appointment of new counsel and the filing of an appeal, this Court remanded for an evidentiary hearing on trial counsel's effectiveness. After the hearing, the lower court found counsel effective. This appeal followed.

Appellant contends first that the evidence was insufficient to support his conviction for conspiracy. We disagree. "The test of the sufficiency of the evidence is whether viewing the evidence in the light most favorable to the Commonwealth, the trier of fact could reasonably have found all the elements of the crime had been established beyond a reasonable doubt." Commonwealth v. Eckert, 244 Pa. Superior Ct. 424, 428, 368 A.2d 794, 795, 796 (1976). "[F]or a defendant to be convicted of conspiracy, the Commonwealth must prove his involvement in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy." Commonwealth v. Lewis, 276 Pa. Superior Ct. 451, 457, 419 A.2d 544, 547 (1980). See 18 Pa. C.S.A. ยง 903. "A conspiracy may be inferentially established by showing the relation, conduct or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed."

[ 303 Pa. Super. Page 553]

    explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth's witness's truthfulness is ineffective assistance of counsel." Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975). Accord, Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976). Though counsel may have a legitimate strategy for not calling eyewitnesses at trial, "there is no basis for the decision not to interview them nor attempt to do so." Commonwealth v. Mabie, supra, 467 Pa. at 475, 359 A.2d at 374. Despite being aware that the incident took place before a group of people and that appellant named two eyewitnesses in his statement to the police, counsel did not seek to have an investigator hired to locate possible eyewitnesses, nor did he investigate the scene himself. He left the task of finding the two named eyewitnesses to appellant's family. Placing the burden on a defendant's family in circumstances such as these does not constitute a reasonable attempt to interview them. Commonwealth v. Williams, 273 Pa. Superior Ct. 147, 416 A.2d 1132 (1979). Moreover, at the evidentiary hearing, appellant's present counsel produced one of the named witnesses and a second eyewitness through the use of an unlicensed investigator. Both witnesses corroborated appellant's testimony that he was merely trying to break up the fight when Helm was stabbed. Trial counsel testified that based upon discussions with appellant and his family, he determined that the witnesses' testimony would only complicate the case. However, he admitted that had he interviewed the witnesses, his conclusion not to call them may have differed.*fn1 We would not second guess counsel's decision had he actually interviewed the witnesses and then determined that their testimony would unnecessarily complicate

[ 303 Pa. Super. Page 555]

    the case.*fn2 However, counsel did not interview, nor take reasonable steps to interview the witnesses and consequently he was unable to make an informed, independent decision on the value of their testimony. Counsel's decision not to investigate the witnesses cannot be said to have been reasonably designed to effectuate his client's interests and thus, we must reverse the judgment of sentence and grant a new trial.

Order and judgment of sentence reversed and a new trial granted.

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