Appeal from the judgment of sentence December 16, 1985 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 355, 356, 358 February Term, 1983
Andrew J. Jackson, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Montemuro, Johnson and Cercone, JJ. Johnson, J., files a concurring opinion.
[ 356 Pa. Super. Page 304]
Appellant, Tyrone Boyd, was convicted in a jury trial of robbery, conspiracy and burglary for his role in an incident on December 22, 1982, in which he and two others brutally beat and robbed a 94 year old woman as she sat in her living room. Appellant advanced an alibi defense at trial.
At trial the appellant presented the testimony of Carl Lee to establish his alibi defense. Lee testified that around the time that the crimes in question occurred he saw the appellant at the local pizza parlor in the company of a young woman. On cross-examination the witness identified the girl as "Saskie," and he acknowledged that she was outside the courtroom. Then, after a break at the conclusion of Lee's testimony, appellant's counsel requested an in-chambers conference with the trial judge. He then advised the court and the prosecutor that his second alibi witness, Saskie Jones, had decided not to testify, either out of fear or an inability to remember events in question. When both the Commonwealth and defense counsel tried to find Jones in the hallway outside the courtroom, she had already left. Neither side pursued her further. Moreover, trial counsel stated that even if she had remained, he would not have presented her as a witness for appellant.
In his direct appeal from judgment of sentence, appellant alleged, inter alia, that his trial counsel was ineffective for failing to enforce a subpoena issued to Saskie Jones to compel her testimony, or, alternatively, for failing to object
[ 356 Pa. Super. Page 305]
to the missing witness charge, which the Commonwealth had requested subsequent to the in-chambers conference regarding Saskie Jones' departure.*fn1
By a Memorandum Opinion, at No. 02883 Philadelphia, 1983, this court remanded the case to the trial court for an evidentiary hearing on appellant's ineffectiveness claims because it concluded that there may be arguable merit to them. This court considered the record as inadequate to resolve whether the course chosen by trial counsel in not compelling Saskie Jones to appear on appellant's behalf nor in failing to object to the missing witness charge had some reasonable basis designed to effectuate appellant's interest. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
Prior counsel testified at the evidentiary hearing that he had encountered difficulties in finding Jones, but that on the day before she was to testify, he went to her residence to get her. He took her to court and she was prepared to testify. Then, after Carl Lee's testimony for appellant, she expressed her unwillingness to be a witness because she was unsure as to the actual date that she had been with appellant in the pizza parlor. Trial counsel, according to his testimony at the evidentiary hearing, immediately concluded that her testimony would be counterproductive to the alibi defense.
Moreover, it was revealed at the evidentiary hearing over appellant's objection that the Commonwealth was prepared to offer strong impeachment evidence against Carl Lee to the effect that if Jones did testify on appellant's behalf, a witness would be called to prove that Lee had threatened Jones if she did not support ...