No. 344 Philadelphia, 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 1346-82, dated January 10, 1983.
Louis Lipschitz, Philadelphia, for appellant.
Patricia Ann Zaffarano, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Rowley and Watkins, JJ.
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This is a direct appeal from convictions of burglary, criminal attempt and criminal conspiracy. In a remarkably able presentation, the appellant, Stuart S. Carlitz, argues that the court below erred in failing to charge the jury on withdrawal from the conspiracy; that trial counsel was ineffective for failing to present the testimony of a known, available and corroborative witness; that the evidence was insufficient to sustain the verdict warranting dismissal; and finally, that the verdict was contrary to the weight of the evidence.
The significant issues are the sufficiency of the evidence, assuming this point was preserved below or may now be presented because trial counsel was ineffective in failing to preserve it and whether the verdict was contrary to the weight of the evidence. Because of the importance of corroboration to these issues, the failure to present the known, available and corroborative witness takes on added significance.
In summary, we conclude that the withdrawal defense lacked merit, that a sufficient charge on withdrawal was given, that any defect therein was waived and that such waiver did not constitute ineffective assistance of counsel. In addition, while troubled by the verdict, we conclude that the evidence was barely sufficient to allow a jury to return a verdict of conviction and was not against the weight of the evidence. Finally, we conclude that the failure of
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defense counsel, given the particular characteristics of this case and the importance of corroboration in assessing even the sufficiency of the evidence, to present a known, available and corroborative witness favorable to Carlitz was, if the witness and her testimony were known to counsel, ineffective assistance warranting a new trial. If such witness or her testimony was unknown to counsel, we direct the trial court to hold an evidentiary hearing to determine whether counsel's assistance was or was not ineffective.
Before exploring these matters in detail, we first state the facts of the case, viewed as we must, in the light most favorable to the verdict winner, the Commonwealth. Commonwealth v. Sinwell, 311 Pa. Superior Ct. 419, 457 A.2d 957 (1983); Commonwealth v. Barnes, 310 Pa. Superior Ct. 480, 456 A.2d 1037 (1983).
Carlitz was owed a debt by one Christopher Kershner. About a week earlier, Carlitz saw Kershner at a friend's house and Kershner invited Carlitz to stop over to see Kershner's one-year-old baby. Kershner told Carlitz to stop by on a Monday, as this was probably the best time to catch him at home.
On Monday, April 12, 1982, at about "noontime" Kershner was at home in the upstairs watching television with his one-year-old daughter, when he heard a knock at the door. He didn't answer, however, "because you never know who it is." Instead of answering, Kershner looked out the bathroom window overlooking his driveway and saw a car he did not recognize. "(I)t was a Chevrolet, it was sort of minty-lime green, it's ...