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COMMONWEALTH PENNSYLVANIA v. DONALD ANTHONY GARRITY (11/14/85)

decided: November 14, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DONALD ANTHONY GARRITY, APPELLEE



APPEAL FROM THE ORDER OF THE SUPERIOR COURT OF PENNSYLVANIA DATED JULY 6, 1984, AT NO. 527 PITTSBURGH, 1982, WHICH REVERSED AND REMANDED THE ORDER OF THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, PENNSYLVANIA CRIMINAL DIVISION, DATED APRIL 26, 1982, AT NO. 957 JULY TERM, 1979. 331 PA. SUPERIOR COURT 475, 480 A.2D 1133 (1984)

COUNSEL

John J. Driscoll, Dist. Atty., Donna J. McClelland, Asst. Dist. Atty., Judith Karns Ciszek, Greensburg, for appellant.

Edward Bilik, First Nat. Bank, Greensburg, for appellee.

Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., did not participate in the consideration or the decision of this case.

Author: Hutchinson

[ 509 Pa. Page 49]

OPINION OF THE COURT

The Commonwealth appeals by allowance a Superior Court order reversing a Westmoreland County Court of Common Pleas order denying relief under the Post-Conviction Hearing Act. (PCHA).*fn1 Superior Court vacated petitioner's third-degree murder conviction and granted him a new trial. It held that appellee lost his right to effective assistance of counsel when his trial attorney failed to adequately advise him of his right to testify in his own behalf. We hold that trial counsel's strategy was reasonably related to appellee's interests, and thus constitutionally effective. Therefore, we reverse.

In the early morning hours of March 26, 1979 Dale Clawson and his friend, Ronnie Rose, left Seven Springs Ski resort. They left in Clawson's pick-up truck; Clawson was driving. As the pair travelled on County Line Road, on the border of Fayette and Westmoreland Counties, Rose noticed

[ 509 Pa. Page 50]

    two people standing at the right edge of the road, near John Coccioletti's cabin. There is no indication in the record that Rose could identify these individuals. An instant after passing them, Rose heard a loud "bang". Clawson slumped over and lost control of the truck. It left the highway, and crashed into a tree. After the truck stopped, Rose saw a hole in the back of Clawson's head. Pathological investigation showed that a bullet of unknown caliber had passed through Clawson's head and caused his death. Evidence showed that the bullet was fired from the right and rear of Clawson at a slightly lower elevation, roughly at the location where the two individuals were standing. Two spent .45 caliber shells were found at the berm of the road; ballistic evidence showed that they came from a gun registered to Coccioletti.

Also on March 26, 1979, appellee and his friend, John Coccioletti, and Roger Eckels, an off-duty Mt. Pleasant Borough policeman, were at the bar at the Seven Springs Ski resort. Eckels noticed that Coccioletti and appellee were drunk. He drove them to Coccioletti's cabin and took the keys to their vehicle. Coccioletti's cabin is located on County Line Road in the vicinity where Clawson was shot. Shortly after returning to Seven Springs Eckels got a call from appellee. Appellee asked Eckels to come back to the cabin because "John's going crazy. He took the .44 and went outside."*fn2 Before Eckels arrived, appellee and Coccioletti left the cabin. They went to breakfast with a friend named Kurt Pankopft. Driving to the restaurant in Pankopft's truck, they passed Clawson's truck. Coccioletti remarked that he felt responsible because he threw an M-80*fn3 at the truck. N.T. at 258.*fn4 After arriving at the cabin, Eckels realized that appellee and Coccioletti were gone, and noticed Clawson's crashed truck. Eckels investigated and found that Clawson was dead. Eckels called the

[ 509 Pa. Page 51]

    restaurant and spoke with appellee. He asked appellee if they were involved in any incident; appellee denied involvement in any incident. N.T. at 328-30.*fn5 Eckels instructed them to return to the cabin immediately. During the return trip appellee and Coccioletti discussed what should be done with the guns. On the way back they stopped twice, once to empty ammunition and once to hide the two pistols. N.T. at 263-73.*fn6 Later, appellee asked Pankopft to retrieve the guns; they were subsequently seized in a search of Coccioletti's cabin. Upon their return, Eckels asked appellee and Coccioletti ...


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