NO. 221 HARRISBURG, 1981, Appeal from the PCHA Order of July 1, 1981, in the Court of Common Pleas of York County, Criminal Division, at No. 1244 of 1976.
Richard Keith Renn, Assistant Public Defender, York, for appellant.
Floyd Paul Jones, Assistant District Attorney, York, for Commonwealth, appellee.
Cavanaugh, Beck and Montemuro, JJ. Cavanaugh, J., files a dissenting opinion.
[ 318 Pa. Super. Page 591]
Appellant, Malcolm R. Linch, was convicted by a jury of violating The Controlled Substance, Drug, Device and Cosmetic Act*fn1 by selling cocaine to a narcotics agent. Timely post-trial motions were filed and denied and an appeal was taken to this Court which affirmed judgment of sentence.
Subsequently appellant filed a pro se petition and amended petition seeking post conviction relief under the Post Conviction Hearing Act ("PCHA") alleging inter alia that his trial counsel, who was also counsel on appeal, was
[ 318 Pa. Super. Page 592]
ineffective in failing to contact certain eyewitnesses whose testimony he claimed would have been favorable to his defense.*fn2 After a hearing at which appellant proceeded pro se, post conviction relief was denied. This appeal is from the July 1, 1981 order denying that relief.
The test for evaluating a claim foregone under the ineffectiveness of counsel calculus is well-settled:
We [initially] evaluate the foregone claim to see whether it bore arguable merit. If it did, we must ascertain whether counsel had a reasonable basis for foregoing that claim.
Commonwealth v. McKnight, 307 Pa. Super. 213, 217, 453 A.2d 1, 3 (1982) (citing Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980)).
We proceed to review the facts underlying the ineffectiveness claim in that light. On May 18, 1976, Keith Miller, who was an undercover narcotics agent, went to appellant's home. He was accompanied by an informant named Richard "Honky" Jackson and an unidentified man whom Jackson knew. The three men entered appellant's home seeking to purchase cocaine. Miller testified that he purchased from appellant six glassine bags of cocaine. He also testified that he returned to appellant's residence on May 25, 1976, accompanied by a woman ...