Appeal from the Order of the Superior Court dated June 22, 1984, at No. 453 Pittsburgh 1983, Affirming the Order of March 10, 1983, of the Court of Common Pleas of Washington County, Pennsylvania, Criminal Division, at No. 954 A,B of 1975. 330 Pa. Superior Ct. 569, 481 A.2d 361 (1984)
David N. Rutt (Court-appointed), Washington, for appellant.
John C. Pettit, Dist. Atty., William A. Johnson, 1st Asst. Dist. Atty., Washington, for appellee.
Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., did not participate in the consideration or decision of this case. Zappala and Papadakos, JJ., concur in the result. Nix, C.j., files a dissenting opinion. McDermott, J., files a dissenting opinion.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Richard Bolden appeals by allowance an order of Superior Court 330 Pa. Super. 569, 481 A.2d 361, affirming an order of the Washington County Court of Common Pleas denying him relief on a petition he filed pursuant to our Post Conviction Hearing Act.*fn1 Appellant raises, generally, issues of (1) judicial overreaching, (2) prosecutorial misconduct and (3) ineffective assistance of counsel. The most troubling issue is appellant's trial counsel's failure, inexplicable on this record, to impeach a Commonwealth witness whose direct testimony contradicted appellant's alibi witness. The impeaching fact was stated in a report, written by the Commonwealth witness, on the basis of which counsel was otherwise cross-examining him. Because the record contains evidence from which prejudice to appellant could be inferred, the lower court's failure to inquire into or find the reason for counsel's omission in this respect leaves us with a record inadequate for appellate review.
The order of Superior Court is vacated and the case remanded to Common Pleas for an express determination of whether counsel's failure was inadvertent or consciously
designed to insure appellant a means of avoiding a likely guilty verdict through ineffectiveness.*fn2
The record shows that on January 10, 1972, Robert Indyk was robbed and murdered at his place of business. On April 10, 1975, Michael Romano gave a statement to police that he had participated in planning this crime.*fn3 Romano was not present at the scene, however, when the crime was committed.
Appellant was arrested later in 1975 and was first brought to trial in Washington County on January 21, 1976. After a jury was sworn and empaneled and some testimony had been heard, a mistrial was ordered on appellant's motion.*fn4 This Court subsequently determined that subjecting Bolden to a new trial did not, under the circumstances of the case, violate his constitutional right against double jeopardy.*fn5 Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).
Appellant's second trial commenced on July 7, 1977,*fn6 at which time appellant was represented by new counsel. A
jury was empaneled and the trial itself began on Monday, July 11, 1977 and continued through Friday, July 15, 1977. The jury was sequestered, as were the witnesses with the exception of the Commonwealth investigating officers, appellant's investigator and, of course, appellant.
The Commonwealth relied primarily upon Romano and Darcy in presenting evidence against appellant. Romano testified that appellant had accompanied him and Nastari to the scene of the crime on January 8, 1972, for the purpose of planning it. Darcy testified that appellant confessed the commission of the crime to him. Darcy also testified about an alleged plot to kill Romano.
Appellant relied upon alibi, presenting testimony from his mother and his sister, as well as himself, about his actions on January 8 and 10, 1972. Additionally, appellant's attorney at the time of his first trial, testified in contradiction of Darcy's assertions about a plot to kill Romano.
In rebuttal, one Officer Beels testified for the Commonwealth that Mrs. Bolden, appellant's mother, had told him on February 15, 1972, that she had not seen appellant since January 6, 1972. This was in direct conflict with Mrs. Bolden's alibi testimony. After beginning deliberations, the jury asked to hear again Mrs. Bolden's testimony and Beels's rebuttal testimony in that regard. The court, over appellant's counsel's objection, permitted the transcript of that testimony to be read.
The jury found appellant guilty of robbery and first degree murder. Following denial of post-trial motions appellant was sentenced on June 2, 1978, to life imprisonment on the murder conviction and to a term of ten to twenty years imprisonment on the robbery. Superior Court affirmed the judgment of sentence, Commonwealth v. Bolden, 268 Pa. Superior Ct. 431, 408 A.2d 864 (1979), and this Court denied allocatur.
Appellant filed a Post Conviction Hearing Act petition pro se in June 1980. Counsel was appointed and hearings were held on June 1 and 2 and July 26, 1982. The hearing
judge addressed the merits of all issues appellant raised, denied relief and dismissed the petition on March 10, 1983. This order was affirmed by Superior Court on June 22, 1984, and appellant's Application for Reargument was denied. Superior Court found that appellant had waived the issues concerning prosecutorial misconduct and judicial overreaching by failing to raise them at trial or on direct appeal.*fn7
We must now consider appellant's specific allegations regarding each general category of error which he raises.
Appellant did not raise the issue of judicial overreaching in his direct appeal; therefore, all but one of his complaints in this regard have been waived.
The one issue in this category which is not waived involves after-discovered evidence. Because we have granted appellant's motion for admission of that after-discovered evidence, we must address the merits of the issue appellant raises concerning the trial judge's conduct at his first trial.
As stated above, Commonwealth witness Darcy testified at the first trial about an alleged plot to kill appellant's co-conspirator, Romano. Appellant's first counsel was permitted to read the statements Darcy had made to the police. Those statements implicated that counsel, who withdrew as counsel in order to testify in the case. In order to permit appellant's new counsel to prepare for trial, the judge ordered a mistrial. Subsequently, a new trial was scheduled.
In our opinion holding that a new trial did not place appellant twice in jeopardy we stated that, "On February 23, 1976, [the trial judge] placed a statement in the record denying that he had any knowledge of Darcy's statements to the police before trial." Commonwealth v. Bolden, 472 Pa. 602, 637, 373 A.2d 90, 107 (1977) (footnote omitted). On November 29, 1984, the first trial judge was deposed for purposes of an action which appellant brought in the United States District Court. In that deposition the judge responded as follows:
Q. When did you first learn of the information that there was a murder plot or conspiracy to murder a Commonwealth witness?
A. Before the trial at which this all came out.
Q. From whom did you learn that information?
A. In a variety of ways, talking to Sam Rodgers, from the State Police, possibly from a newspaper reporter. The ...