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filed: July 6, 1984.


No. 527 Pittsburgh, 1982, Appeal from the PCHA Order of April 26, 1982 in the Court of Common Pleas of Westmoreland County, Criminal Division, No. 957 July Term, 1979


Edward J. Bilik, Assistant Public Defender, Greensburg, for appellant.

Judith Karns Ciszek, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

Cavanaugh, Cirillo and Cercone, JJ. Cirillo, J., files a dissenting opinion.

Author: Cercone

[ 331 Pa. Super. Page 478]

This case comes to us on a denial of Donald Anthony Garrity's Post Conviction Hearing Act*fn1 petition. He and a co-defendant, John Anthony Coccioletti, were found guilty of murder in the third degree by a jury and each was sentenced to terms of imprisonment of from three to ten years. Both defendants perfected their consolidated appeals before the Supreme Court of Pennsylvania which affirmed their judgments of sentence. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981) (per Larsen, Justice; Roberts, C.J. concurring in result; Flaherty, J. dissenting). Now, pursuant to the Post Conviction Hearing Act, appellant asserts that his trial counsel was ineffective in three respects: in failing to take measures to ensure that a certain statement, exculpatory to appellant, but hearsay as to his co-defendant, would be admitted into evidence;*fn2 in

[ 331 Pa. Super. Page 479]

    failing to advise appellant of the factors to consider in deciding whether to testify in his own behalf; in failing to challenge the information filed in appellant's case because of the rubber stamp facsimile of the district attorney's signature. Our review of the record in this case persuades us that there is indeed merit to appellant's contention pertaining to the fact that he did not testify at trial. Therefore, we reverse and remand for a new trial.

The case against Garrity and Coccioletti was circumstantial. The testimony at trial established the following. They had been drinking heavily, so much so that one Eckels, a friend and an off-duty policeman, drove them home to Coccioletti's cabin, in a rural area of Westmoreland County. Eckels also took the keys to their vehicles when he left them. Eckels drove to Seven Springs, about 10 minutes from Coccioletti's cabin, when he received a phone call from Garrity the appellant. Garrity told Eckels that John [Coccioletti] was very drunk; "you better come down. John's going crazy. He took the .44 and went outside." It is this statement that was successfully challenged as hearsay at trial as to co-defendant Coccioletti by his attorney. This same statement was admitted at the preliminary hearing over the same objection.

Before Eckels arrived back at the cabin, another friend, one Pankopft, stopped at the cabin to ask Garrity and Coccioletti if they wanted to get breakfast. This was at approximately 2:15 a.m. When the three men had driven a few hundred feet from the entrance to the cabin, on County Line Road, Pankopft noticed that a truck had wrecked into a tree at the side of the road. People had begun to gather, but Pankopft continued down the road. At this time, Coccioletti remarked that he felt somewhat responsible since he threw an M-80 (firecracker) at the truck. (This statement was objected to by both defense counsel, but was admitted.) Within minutes they arrived at the restaurant, but as soon as they ordered, Garrity received a phone call from Eckels.

[ 331 Pa. Super. Page 480]

Eckels testified at trial over objection, that he asked Garrity whether they had been involved in any incident, to which Garrity answered "no". Eckels told them to return to the cabin.

The three men got into the car, with Garrity in the back seat, and Coccioletti and Pankopft in front. Pankopft testified at trial that he had driven a short distance when Garrity asked, "What are we going to do with the guns." Pankopft was then instructed to pull off the road, which he did. Garrity and Coccioletti were talking to each other in loud excited voices. Coccioletti produced a revolver, opened his door, and emptied the shells from it. Pankopft resumed driving when Garrity repeated again, "what are we going to do with the guns?" (These statements by Garrity were also admitted over objection.) Coccioletti answered, "We could say they were in Jeannette." The driver then pulled into a driveway since the conversation in the car consisted of the urgency of getting the guns out of the car. At this point, Garrity passed an automatic weapon to Coccioletti who left the car with the guns and placed them under a tree. They then proceeded to Coccioletti's residence. About ten or fifteen minutes after arriving there, Garrity asked Pankopft to go back and retrieve the guns. By this time, Eckels returned to the cabin, having been at the site of the wrecked truck. He told Coccioletti and appellant that there was a man dead in the truck from what appeared to be a gunshot wound. Coccioletti responded -- and this statement was admitted over objection of counsel -- that they had been shooting across the roadway, but that the only possible way they could have hit anyone was by a ricochet. The evidence established that neither defendant knew the victim. Appellant and Coccioletti were arrested later that morning and charged with the murder of Dale Clarence Clawson, the driver of the truck.

Appellant argues that his statement to Eckels, "you better come down. John's going crazy. He took the .44 and went outside" is the most powerful piece of evidence available to him in that it took place prior to the shooting and

[ 331 Pa. Super. Page 481]

    enlisted the aid of a close friend who happened to be a police officer. Appellant contends that it shows that a person conspiring to commit a crime would not ask for help from a police officer. In fact, it is the only exculpatory evidence available to counsel for appellant. It was omitted only because it was hearsay as to Coccioletti. Thus, appellant argues that his trial counsel was ineffective in that he should have been on notice as to the existence of this statement and to the fact that counsel for the co-defendant would object at trial, as he did at the preliminary hearing. (Appellant's trial attorney was hospitalized at the time of the preliminary hearing; an associate represented appellant at that proceeding.) Appellant maintains that his attorney should have either requested that the reference to Coccioletti be redacted to ensure its admission, or, if redaction were impossible, that he should have filed a pre-trial motion for a severance.*fn3 Appellant also urges that he himself could have introduced that statement had he testified at trial and that counsel's election not to present a defense constituted ineffectiveness of counsel.

[ 331 Pa. Super. Page 482]

Counsel is constitutionally ineffective if he fails to raise a claim of arguable merit and it is shown further that such a course of action had no "reasonable basis to effectuate his client's interests." Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352 (1967). Since this test requires that we examine the approach employed by counsel in light of the available alternatives, a finding of ineffectiveness should never be ...

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