No. 80-3-632, Appeal from the June 3, 1980 Order of the Hon. John E. Stively, Jr., Court of Common Pleas of Chester County, Criminal Division, granting the defendant a new trial (No. 182 November Term, 1973).
Lee Ruslander, Chief, Appeals Div., West Chester, for appellant.
Alan Lourie, John R. Merrick Asst. Public Defenders, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., concurs in the result.
On April 17, 1974, appellee C. Alton Wade, Jr. was convicted by a jury of voluntary manslaughter and sentenced to a term of imprisonment of five to ten years. On appeal, this Court vacated the judgment of sentence and remanded for an evidentiary hearing on the issue of trial counsel's ineffectiveness in failing to produce one Sam Stearly as an alibi witness at trial. Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978). After conducting an evidentiary hearing, the court of common pleas concluded that trial counsel's failure to interview Sam Stearly and to call him as an alibi witness constituted ineffective assistance of counsel and granted appellee a new trial. This direct appeal by the Commonwealth followed.
The Commonwealth contends that trial counsel was not ineffective in failing to produce Sam Stearly at trial because Sam Stearly could not have provided an alibi for appellee even if he had testified. We agree.
"The test of constitutionally effective assistance of counsel is whether a 'particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests'." Commonwealth v. Upsher, 497 Pa. 621, 626, 444 A.2d 90, 92 (1982) (emphasis in original; citation omitted).
With respect to the course chosen by counsel in this case -- failing to interview and call Sam Stearly as an alibi
witness -- "[i]t is well-settled that the failure of trial counsel to call a potential alibi witness does not constitute ineffective assistance unless there is some showing that the testimony of the absent witness would have been helpful in establishing the asserted defense." Commonwealth v. Leonard, 499 Pa. 357, 362, 453 A.2d 587, 589 (1982). See also Upsher, supra 497 Pa. at 626, 444 A.2d at 92 ("The initial factor that is considered in applying this standard is whether the matters counsel is charged with failing to competently pursue had arguable merit.").
In this case, there was no showing that the testimony of Sam Stearly would have helped appellee establish an alibi defense. "Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Commonwealth v. Whiting, 409 Pa. ...