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COMMONWEALTH PENNSYLVANIA v. ALAN PRESBURY (06/01/84)

filed: June 1, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
ALAN PRESBURY, APPELLANT



No. 1438 Philadelphia, 1982, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 525 July Term, 1974.

COUNSEL

Harvey W. Robbins, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Rowley, Wieand and Popovich, JJ. Popovich, J., concurs in the result.

Author: Wieand

[ 329 Pa. Super. Page 182]

Alan Presbury was tried by jury and was found guilty of first degree murder*fn1 as a result of the killing of Blair Lee in May, 1974 at 28th and Huntingdon Streets in Philadelphia. A sentence of life imprisonment was imposed, and, on direct appeal, the judgment of sentence was affirmed. Commonwealth v. Presbury, 475 Pa. 48, 379 A.2d 569 (1977). Presbury subsequently filed a petition under the Post Conviction Hearing Act. Counsel was appointed, and evidentiary hearings were held. Appellant's P.C.H.A. petition was thereafter dismissed, and he appealed to this Court. We remanded with instructions to the P.C.H.A. court to make necessary findings of fact. Commonwealth v. Presbury, 321 Pa. Super. 69, 467 A.2d 898 (1983). Those findings have now been made; and the P.C.H.A. court's final order is again before us for review.

As Blair Lee, Jimmy Mosteller, Valerie Williams and Raymond Holmes walked along Huntingdon Street in the early evening of May 2, 1974, an assailant removed a shotgun from a parked car and fired it at the quartet walking along the street. Lee was struck in the chest and

[ 329 Pa. Super. Page 183]

    arm and died as a result of his wounds. Holmes was struck in the left eye. Only Holmes was able to identify the assailant. He testified that he had observed the face of the assailant for two seconds and that he recognized appellant, with whom he had had prior confrontations, as the man pointing the shotgun. Appellant's defense was that Holmes was mistaken in his identification of the assailant and that he, Presbury, had been elsewhere at the time of the shooting. The jury rejected appellant's defense and convicted on the basis of Holmes' identification.

In P.C.H.A. proceedings, appellant alleged that trial counsel had been ineffective for the following reasons: (1) he failed to use Holmes' juvenile record to impeach Holmes' credibility; (2) he failed to call character witnesses; (3) he failed to show that appellant had no prior record; (4) he failed to establish that the group to which appellant belonged was not a recognized, violent "gang"; (5) he crossexamined a witness regarding evidence not produced at trial; and (6) during closing argument to the jury, he referred to a conflict in the testimony given by defense witnesses.

When confronted with a claim of ineffectiveness of counsel, we use a two-step analysis. We must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of arguable merit, then we determine whether the course chosen by counsel had some reasonable basis calculated to promote the client's interests. Commonwealth v. Klinger, 323 Pa. Super. 181, 193, 470 A.2d 540, 546 (1983); Commonwealth v. Jennings, 285 Pa. Super. 295, 298-299, 427 A.2d 231, 232 (1981). The burden of showing that counsel's representation has been constitutionally ineffective is upon the appellant. Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976); Commonwealth v. Barnes, 248 Pa. Super. 579, 582, 375 A.2d 392, 394 (1977).

Appellant's principal contention is that trial counsel was ineffective because he failed ...


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