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filed: October 7, 1983.


No. 698 Philadelphia, 1981, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 838 April Term, 1972.


Richard A. Ash, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Wieand and Hoffman, JJ. Wickersham, J., filed a dissenting opinion.

Author: Wieand

[ 319 Pa. Super. Page 523]

Alfred Elliott was tried by jury and convicted of rape. The conviction and judgment of sentence were affirmed on direct appeal by this Court. Commonwealth v. Elliott, 228 Pa. Super. 753, 312 A.2d 801 (1973). Allocatur was denied. Elliott then filed a pro se petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. New counsel was appointed and filed an amended petition, in which the effectiveness of prior counsel's representation was challenged. Following evidentiary hearings, the P.C.H.A. court dismissed the P.C.H.A. petition. This appeal followed.

Appellant's P.C.H.A. petition recited numerous instances of alleged ineffectiveness of counsel during pretrial proceedings, at trial, and on direct appeal. These averments included (1) an alleged failure to conduct pretrial discovery or otherwise make an adequate investigation of the facts; (2) a failure to call as part of the defense a known and available alibi witness; (3) a failure to show the distance between the site of the crime and the place where appellant testified he had been at the time of the crime; (4) a failure to demonstrate the differences between the vehicle in which appellant was arrested and the vehicle described by the victim as the place of the rape; (5) a failure to move pre-trial to suppress evidence obtained allegedly as a result of an unlawful search and seizure; (6) a failure to make various objections during trial; (7) joining a request for a curative instruction after the jury had heard evidence of an unrelated auto theft; and (8) failing to file an adequate appellate brief in support of appellant's direct appeal. Evidentiary hearings were held on five separate dates, to wit: November 20, 1978, December 18, 1978, March 5, 1979,

[ 319 Pa. Super. Page 524]

March 6, 1979 and November 2, 1979. An opinion filed February 17, 1981 was accompanied by an order denying relief. The opinion contained no specific findings of fact but concluded generally as follows:

We have reviewed this record in its entirety and we are convinced and find as a fact that the defendant was not deprived of his constitutional right to representation by competent and effective counsel. On the contrary, we conclude as a matter of law that defendant's counsel competently and effectively did represent this defendant.

On appeal from the order denying P.C.H.A. relief, appellant contends, inter alia, that the court's opinion was inadequate because it failed to contain findings of fact, and that, in any event, the court erred in finding trial counsel effective.

We agree that the hearing court's opinion is inadequate. Although the opinion contains an accurate recitation of applicable legal principles, it does not contain findings of fact and does not resolve fundamental conflicts in the evidence. Without findings of fact, this Court cannot fulfill in a meaningful way its responsibility to conduct appellate review.

Several illustrations will demonstrate the impossibility of conducting appellate review in this case. Appellant testified at the P.C.H.A. hearing that he had informed trial counsel in advance of trial that Bernard Broomer was an alibi witness. Broomer testified at the P.C.H.A. hearing that he had been with Elliott at the time the crime was allegedly committed. He also testified that he had given this information to appellant's trial counsel and had offered to appear and testify as an alibi witness. He testified that he had heard nothing further from counsel. Counsel testified, however, that he had not been given Broomer's name prior to trial and was not aware that he had relevant information. This presented a clear conflict, the resolution of which was essential to a decision. If trial counsel failed to obtain favorable testimony of a known alibi witness, his

[ 319 Pa. Super. Page 525]

    failure suggests ineffectiveness which will probably require a new trial. See: Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983); Commonwealth v. Sawyer, 309 Pa. Super. 72, 77, 454 A.2d 1088, 1090 (1982); Commonwealth v. Williams, 271 Pa. Super. 114, 120-121, 412 A.2d 601, 605 (1979). See also: Commonwealth v. Wade, 501 Pa. 331, 332, 461 A.2d 613, 614 (1983); Commonwealth v. Leonard, 499 Pa. 357, 361, 453 A.2d 587, 589 (1982); Commonwealth v. Casner, 315 Pa. Super. 12, 21, 461 A.2d 324, 328 (1983); Commonwealth v. Stafford, 307 Pa. Super. 278, 288, 453 A.2d 351, 355-356 (1982). There can be no ineffectiveness, however, if the existence of the alibi witness was not disclosed to counsel. See: Commonwealth v. Owens, 454 Pa. 268, 272-273, 312 A.2d 378, 381-382 (1973); Commonwealth v. Blackwell, 312 Pa. Super. 117, 122, 458 A.2d 541, 544 (1983); ...

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