No. 334 Philadelphia, 1983, Appeal from the Order entered January 3, 1983 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 82-04-294-296
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
A. Balfour Smith, Philadelphia, for appellee.
McEwen, Tamilia, and Cercone, JJ.
[ 338 Pa. Super. Page 582]
This is an appeal by the Commonwealth from the order of the court below awarding appellee, Bray Murray, a new trial on the ground that he was denied the effective assistance of trial counsel. We reverse.
The relevant events giving rise to this appeal are as follows. In August of 1982, appellee was tried by a jury and found guilty of first degree murder and a weapons offense, but acquitted of robbery. The Commonwealth's evidence established that on November 7, 1981, at approximately 8:30 p.m., appellee and the decedent, Eric Taylor, were customers of the P and D Bristol Bar in Philadelphia. Appellee exited the bar and waited outside where he was overheard saying to himself: "Wait till the motherfucker come out the bar." When Eric Taylor emerged from the bar, appellee grabbed him from behind and said, "Give me your money, pussy." Immediately thereafter, appellee repeatedly stabbed Taylor with a ten-inch dagger. Appellee then ran away, leaving Taylor bleeding heavily and leaning against a parked automobile.*fn1 Mr. Taylor died six days later as a result of multiple stab wounds.
The only defense testimony was that of appellee's companion, Kevin Mathis a/k/a Gilmore. According to him, Taylor and appellee had a verbal argument inside the bar and when they went outside Taylor was the first to brandish a knife. He further testified that appellee responded by seizing Taylor with one hand and repeatedly stabbing him with the other.
Appellee's motion for a new trial alleged, inter alia, the ineffectiveness of trial counsel and this resulted in the appointment of new counsel. New counsel filed an amended motion for new trial alleging that trial counsel had been ineffective in several respects including the following:
[ 338 Pa. Super. Page 583]
"(a) That [appellee] requested his Counsel to contact and call four witnesses to testify in his favor, to wit, Carolyn and Christine Jones; Andre Jackson; and one Jill (whose last name is unknown); and his counsel failed to contact said witnesses.
(b) That Counsel failed to Petition the Court for the appointment of an investigator when there was a compelling need for same."
At an evidentiary hearing held by the trial judge, testimony on the ineffectiveness issue was taken from appellee, his mother and trial counsel. Although appellee admitted that on the date of his arrest he named only Mathis as an eyewitness to the detective who interrogated him, he maintained that he had advised counsel well before trial of the previously noted additional alleged witnesses and that counsel had promised to conduct an investigation. Appellee ...