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COMMONWEALTH PENNSYLVANIA v. BRIAN WALLACE (09/27/85)

filed: September 27, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
BRIAN WALLACE



APPEAL FROM THE MOTION FOR NEW TRIAL FEBRUARY 21, 1984 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NO. 71-09-449-501

COUNSEL

Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Louis Lipschitz, Philadelphia, for appellee.

Cavanaugh, Cirillo and Hester, JJ.

Author: Cirillo

[ 347 Pa. Super. Page 250]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting appellee relief under the Post Conviction Hearing Act (PCHA). On July 7, 1972, following a jury trial, appellee was convicted of first-degree murder, agravated robbery, conspiracy, and a weapons offense. Post-verdict motions were filed and denied, and appellee was sentenced on April 5, 1973 to life imprisonment for murder and to concurrent prison terms for the remaining offenses. No direct appeal was taken from that sentence. Subsequently, on December 27, 1977, appellee filed a PCHA petition, alleging deprivation of his right to appeal and ineffective assistance of trial counsel. The PCHA court rejected appellee's ineffectiveness claims, but granted him leave to file post-trial motions nunc pro tunc to perfect his right to appeal. The motions were filed and the court granted appellee's motion for a new trial. The Commonwealth then filed this appeal. We reverse.

The evidence adduced at trial indicated that at approximately 4:15 p.m. on August 10, 1971, Guido Zanni, the owner of a candy store, was shot and killed. At about 4:00 p.m. appellee had been seen in front of the store by a neighborhood youth. Appellee entered the store, came out

[ 347 Pa. Super. Page 251]

    with a soda and, with his accomplice, walked down the block to a grocery store.

A second neighborhood youth saw appellee and his accomplice in the area of the murder. Appellee was wearing a black cap, black shirt, and black trousers. Tucked into the trousers was a gun. As the appellee and his accomplice walked back toward the candy store, the accomplice told the youth, "See you when we get done."

A few minutes later, at approximately 4:15 p.m., a telephone company employee was driving by the scene when he heard a shot and saw three black youths run from the store.

Later that afternoon, appellee and one of his accomplices went to a friend's house. Appellee admitted to the friend that they had robbed and shot Mr. Zanni, and had thrown the gun across the railroad tracks to the north. The accomplice told the friend that they had obtained about twenty-five or thirty dollars in the robbery.

The first issue presented for our review is whether trial counsel was ineffective in failing to present alibi testimony. At the PCHA hearing, evidence was presented indicating that trial counsel had been provided with the names of two alibi witnesses: Ellen Mitchell, appellee's grandmother, and Gregory Starks, appellee's friend, who was allegedly with him at the time of the crime. The trial court, in awarding a new trial, found that trial counsel was ineffective for failing to investigate such evidence.

It is well settled that counsel is presumed to be effective and that the burden of proving to the contrary rests upon the defendant. Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). It is also established that trial counsel's failure to conduct a more thorough investigation or to interview all potential ...


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