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COMMONWEALTH PENNSYLVANIA v. JACK D. MCCASKILL (02/23/83)

submitted: February 23, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JACK D. MCCASKILL, APPELLANT



No. 355 Pittsburgh 1981, Appeal from the PCHA Order of the Court of Common Pleas of Allegheny County, Criminal at No. 6079 June 1972.

COUNSEL

Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, Brosky and Montemuro, JJ. Brosky, J., files a dissenting opinion.

Author: Spaeth

[ 321 Pa. Super. Page 269]

This appeal is from an order denying a petition filed under the Post-Conviction Hearing Act, 42 Pa.C.S.A. ยงยง 9541-9551. Appellant argues that his trial counsel was ineffective in failing to call three alibi witnesses, and that he should therefore be granted a new trial. We have concluded: that counsel reasonably believed that one of the witnesses was dead; that the record is unclear whether the testimony of another of the witnesses would have helped appellant; but that appellant did show that the testimony of the remaining witness would have helped him. Since we can find no reasonable basis for counsel's failure to call that remaining witness, we reverse and remand for a new trial.

On March 8, 1974, a jury found appellant guilty of possession of and dealing in narcotic drugs. On July 25, 1974, he was sentenced to three to six years in prison. We affirmed the judgment of sentence on April 10, 1975, 232 Pa. Super. 747, 337 A.2d 872 (1975), and the Supreme Court denied allocatur on November 13, 1975, No. 529 Allocatur Docket 1975.

[ 321 Pa. Super. Page 270]

On January 16, 1980, appellant filed his petition for relief under the Post-Conviction Hearing Act.*fn1 After a hearing, the lower court denied the petition, and this appeal followed.

Appellant was originally convicted on the strength of the testimony of Detectives James R. Ramsey and Bernard Ciganek of the Pittsburgh Police Department. Detective Ramsey testified that he purchased two half-spoons of heroin from appellant and Robert Baltimore on the evening of July 22, 1971. Ramsey said that at about 6:45 p.m. that evening he picked up appellant and Baltimore in the 900 block of Roselle Court in Pittsburgh, drove to the Hill District, where appellant and Baltimore left the car for a short time to get the heroin, and then returned, with appellant and Baltimore still along, to the 900 block of Roselle Court. It was there, he said, that he purchased the heroin from appellant and Baltimore. Ramsey estimated that he left appellant and Baltimore at the site of the sale at about 7:15 p.m. N.T. 47-50.*fn2 Detective Ciganek testified that he was assigned to cover Ramsey, and had followed Ramsey's car from Roselle Court to the Hill District and back. His testimony of what he observed corroborated Ramsey's testimony. N.T. 99-104.

One of appellant's arguments is that his trial counsel was ineffective in failing to look for Robert Baltimore, appellant's alleged co-conspirator, so that he could be called to testify as an alibi witness. It will be convenient to consider this argument first, before we discuss the bulk of the testimony at the PCHA hearing.

Baltimore testified at the PCHA hearing that he had pleaded nolo contendere to the charges on which he and

[ 321 Pa. Super. Page 271]

    appellant had been arrested, and that if he had been called at appellant's trial, he would have testified that appellant was not with him at the time the offense was committed. N.T. PCHA 9/17/80, 29, 32. From this it appears that Baltimore's testimony would have been helpful to appellant. However, trial counsel testified at the PCHA hearing that the assistant district attorney told him, before appellant's trial, that Baltimore had died. N.T. PCHA, 5/27/80 at 19. Appellant testified at trial, N.T. 156, and at the PCHA hearing, N.T. PCHA 5/27/80, 10, that at the time of trial he too thought that Baltimore had died. In these circumstances counsel could reasonably believe that Baltimore had in fact died. He was therefore not ineffective in failing to look for Baltimore as an alibi witness.

Appellant's remaining arguments concern trial counsel's failure to call Bernice Giles and Paulette King as alibi witnesses.

At his trial appellant testified that during 1971 he was living at 928 Roselle Court with his mother but that from July 19 to July 25 or 26 he was staying at the home of Paulette King, in the Homewood section of Pittsburgh, so that he could be with Bernice Giles, a former girlfriend who was visiting from Detroit and was also staying with King. According to appellant, on the evening of July 22 -- when the detective said the sale of heroin occurred -- he and Giles were baby-sitting for King's children. N.T. 152-55. Appellant said that he had last been in touch with Giles at Christmas of 1971, and that he was not sure whether the address he used then was her address as of the time of trial, in March 1974. He said that he had tried to get in touch with her, to ask her to testify, but had been unsuccessful. N.T. 155. He also said that he did not know where King was living, and that he had not been in touch with her since the spring of 1972. N.T. 157.

At the hearing on his PCHA petition, appellant testified that he had told trial counsel about Giles and King, but "they didn't come in [to testify at trial]. I don't know the reason why they didn't come in." N.T. 5/17/80, 14.

[ 321 Pa. Super. Page 272]

Trial counsel also testified at the PCHA hearing, he said that he remembered little of his representation of appellant, N.T. 5/17/80, 17, and that he had been unable to consult his records on the case because he had given the file either to appellant or to the Public Defender. Id. Although he remembered that appellant had asked him to produce Giles and King as alibi witnesses, he did not remember having filed a notice of alibi defense until the district attorney, on the morning of the PCHA hearing, showed him the notice. Id. at 18. He did not remember talking to the alibi witnesses, trying to find them, or asking for a continuance so that he could try to find them. Id. at 18-20. He explained that he had expected to prevail on a speedy trial issue:

[T]he transaction occurred and he wasn't arrested until fourteen months later and . . . he didn't go to trial for another year, so that was like 27 months delay and that's the issue I thought we were going [to] win on and unfortunately I was mistaken.

Id. at 22.

After trial counsel testified, the hearing judge asked appellant whether counsel had given him the file on the case, and appellant responded that counsel had only given him a copy of the transcript, and not counsel's file. Id. at 23. The judge then asked trial counsel to check with the Public Defender "to see whether you can find your records and if you find them, . . . if that does refresh your recollection." Id. at ...


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