No. 1335 Philadelphia, 1982, Appeal from the Order in the Court of Common Pleas, Criminal Division, Philadelphia County, No. 889-892 April Term, 1973.
Eliot Harvey Lewis, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
McEwen, Hester and Lipez, JJ.
[ 327 Pa. Super. Page 494]
Appellant, James Whyatt, was convicted by a jury of solicitation to commit sodomy, forcible rape, burglary and aggravated robbery. The convictions resulted from appellant's participation with others on March 14, 1973 in the unauthorized entry into the apartment of the victim, the use of deadly weapons to remove personal property therefrom, the gang rape of the victim and the commission of certain grotesque acts of involuntary deviate sexual intercourse with the victim. The victim was three (3) months pregnant at the time.
Following conviction, appellant was sentenced to consecutive terms of imprisonment on each bill, resulting in a combined term of twenty-seven and one-half (27 1/2) to fifty-five (55) years. On appeal from the judgment of sentence, this court affirmed at Commonwealth v. Whyatt, 235 Pa. Super. 211, 340 A.2d 871 (1975). Appellant's subsequent petition for allowance of appeal was denied by the Pennsylvania Supreme Court on November 7, 1975.
Appellant comes before us again on appeal from the lower court's denial of his petition for post conviction relief. Appellant alleges several instances of ineffectiveness of trial counsel as grounds for either discharge or a new trial.
Prior to addressing each of trial counsel's alleged instances of ineffectiveness, we set forth the standard which controls once a counsel's effectiveness is placed at
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issue. Of course, the Pennsylvania Supreme Court, in Commonwealth ex. rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), constructed the course repeatedly followed by our courts in reviewing ineffectiveness claims:
We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.
Id., 427 Pa. at 604-605, 235 A.2d at 352
Furthermore, ineffectiveness occurs only where the alternative not selected "offered a potential for success substantially greater than the tactics actually utilized." Id., 427 Pa. at 605, 235 A.2d at 353, Note 8; Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978).
First, appellant complains that trial counsel did not competently construct an alibi defense. Mrs. Hortense McAlister was the primary defense witness and accounted for most of appellant's actions on the day of the crime. She first related how appellant, her husband Arthur and her uncle from North Carolina arrived at her house around noon that day. The three men departed soon thereafter but returned together at 2:00 p.m. Prior to the men's return to Mrs. McAlister's house, Mrs. McAlister's sister-in-law, daughter Gloria and grandchild arrived. Then, the entire group departed Mrs. McAlister's house around 3:30 p.m. or 4:00 p.m. to visit her uncle's family. Her uncle, Harold Frank, and others from North Carolina were visiting relatives in Philadelphia.
The group traveled to Mrs. McAlister's sister-in-law's house, to another residence on 24th Street and then Mrs. McAlister, her husband Arthur, her twelve-year-old son, her
[ 327 Pa. Super. Page 496]
daughter Gloria and appellant returned to Mrs. McAlister's residence where the excursion originated. At 11:00 p.m., Mrs. McAlister prepared supper while the others, including appellant, watched television on the first floor. From 11:00 p.m. on March 14, 1973 until 3:00 a.m. on March 15, 1973, Mrs. McAlister was not continually in appellant's presence. During that period appellant watched television with Gloria while Mrs. McAlister traversed from the kitchen to the television room. Each time she arrived in the television room, she observed appellant sitting with her daughter. The crime was committed between 10:00 p.m. and 11:00 p.m. on March 14, 1973.
Appellant points out that only Mrs. McAlister and her daughter Gloria were interviewed by counsel. At the post conviction hearing, counsel was asked why he failed to interview Mrs. McAlister's husband, Arthur McAlister. Counsel explained that Arthur was subpoenaed to appear in court on August 27, 1973, the pre-trial date for appellant's Motion to Suppress. Arthur McAlister was unable to appear on that date due to his in-patient status at a Philadelphia hospital. Furthermore, according to counsel, neither he nor another attorney from the Philadelphia Defender's Association interviewed Arthur prior to that date or at anytime thereafter. Mr. McAlister remained unavailable during both the pre-trial and trial periods due to this illness which required longstanding hospitalization.
Other potential alibi witnesses were Mrs. McAlister's twelve-year-old son and her relatives from North Carolina. Counsel chose not to interview and call the son due to his belief that the child's tender years would damage his credibility and diminish his value as a defense witness. Counsel explained that the North Carolina ...