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COMMONWEALTH PENNSYLVANIA v. CHARLES T. RITCHIE (04/06/84)

filed: April 6, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES T. RITCHIE, APPELLANT



No. 331 Pittsburgh, 1982, Appeal from the Order of March 3, 1982 reinstating Judgment of Sentence, Court of Common Pleas, Erie County, Criminal Division, Docket No. 568 of 1975.

COUNSEL

Carmela Presogna, Erie, for appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Brosky, Olszewski and Johnson, JJ.

Author: Johnson

[ 326 Pa. Super. Page 450]

In January 1976, appellant Charles Ritchie was convicted by a jury of robbery and sentenced to a term of imprisonment of five to ten years. Following a hearing under the Post Conviction Hearing Act (PCHA),*fn1 appellant brought an appeal nunc pro tunc from the judgment of sentence. This court vacated judgment and remanded for an evidentiary hearing on trial counsel's diligence in securing the presence of alibi witnesses. Commonwealth v. Ritchie, 291 Pa. Super. 523, 436 A.2d 239 (1981).

Now before us is the appeal from the order of March 3, 1982 reinstating the judgment of sentence, following an evidentiary hearing.

The sole question presented is whether trial counsel provided ineffective assistance in utilizing certified mail to secure the presence of out-of-state witnesses, related to the defendant, without attempting to establish further contact with the potential witnesses by telephone or other means. On the record before us, we have no difficulty in finding counsel's stewardship reasonable. Hence, we affirm.

Appellant was arrested on February 26, 1975 for the robbery of an Erie County motel. On May 8, 1975, a pro se Application to Continue was filed, requesting that his trial be continued from the May, 1975 Term of Criminal Court to the September Term on the basis that "witnesses who are presently in Mississippi" were "necessary for his presentation of a defense" and that the witnesses "[would] be able to be present for the September Term." Although the record does not contain any order entered on the Application,*fn2 it is clear that a continuance was granted, inasmuch as trial did not take place until January 1976.

The first entry of appearance of counsel was by the Public Defender's Office on March 13, 1975. On September

[ 326 Pa. Super. Page 45115]

, 1975, the second of two assistant public defenders who represented appellant secured a second continuance based upon counsel's having been just appointed and needing time to prepare an adequate defense. Then, on October 29, 1975, the public defender(s) were replaced by private counsel whose stewardship is here under review.*fn3

From the P.C.H.A. hearing transcript, we note that trial counsel had first been engaged by appellant's father prior to counsel interviewing appellant at the Erie County Jail. A Motion for Continuance, citing the need for additional time to adequately prepare the case for the defense, and to permit contact with "witnesses crucial ...


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