Reargument on the Order of the Supreme Court dated November 17, 1986 vacating 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, Washington County, Pennsylvania, Criminal Division, No. 954 A, B of 1975 and the Remand of the same to the Court of Common Pleas, Washington County, for further proceedings on Defendant's Petition for Relief under the PCHA, 330 Pa. Super. 569, 481 A.2d 361 (1984).
David N. Rutt, Washington, (Court-appointed), for appellant.
John C. Pettit, Dist. Atty., William A. Johnson, 1st Asst. Dist. Atty., Washington, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott and Zappala, JJ. Larsen and McDermott, JJ., concur in the result. Hutchinson, former J., and Papadakos, J., did not participate in the consideration or decision of this case. Flaherty, J., joins the majority opinion and files a concurring opinion in which Zappala, J., joins.
This appeal arises from the robbery and murder of a Mr. Robert Indyk which occurred at his place of business in January 1972. Appellant, Richard Bolden, was arrested and charged with this crime in 1975. After one aborted trial, a retrial in which the jury returned a verdict of guilty and two prior appearances of this matter on the dockets of this Court, the difficulty in obtaining a definitive disposition of the underlying charges is becoming increasingly apparent. Again a final resolution of the cause is not possible and we are constrained, for the reasons that follow, to award the grant of a third trial in this matter. Such a result sorely strains the resources of the system; however it is compelled in order to maintain the system's integrity and to adhere to our mission of dispensing justice.
The procedural history reflects that appellant was first called for trial in Washington County, the situs of the incident, on January 21, 1976. After commencement of the trial a mistrial was ordered. The issue of whether an immediate retrial would offend double jeopardy was raised
and addressed by this Court in Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), (Bolden I).*fn1
The second trial commenced on July 7, 1977, and concluded on July 15, 1977, when the jury returned a verdict of guilty on both the robbery and first degree murder count. On June 2, 1978, after the denial of post-trial motions, appellant was sentenced to a term of imprisonment for life and to a term of imprisonment of from ten to twenty years under the robbery count. This judgment of sentence was appealed to the Superior Court which affirmed and we denied further review. Following a pro se Post-Conviction Hearing Act petition filed by appellant in June, 1980, the matter again was before this Court raising a particularly troublesome question of counsel's alleged ineffectiveness. Commonwealth v. Bolden, 512 Pa. 468, 517 A.2d 935 (1986) (Bolden II). Because there appeared to be a deliberate attempt by trial counsel to create error in the record to support a claim of ineffective assistance of counsel under the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), a majority of this Court deemed it advisable to remand the cause for an evidentiary hearing to determine if the obvious dereliction was inadvertent or by design.*fn2 Having received the hearing judge's finding that the determination that the omission was inadvertent based upon the expanded record produced in that proceeding, we are now prepared to rule on that aspect of the matter.
A synopsis of the facts forming the setting of the instant issue is sufficient in view of our complete explication of the circumstances surrounding the crime in our earlier opinions in this matter. The victim of this robbery-murder, Robert Indyk, was killed at his place of business on January 10, 1972. Appellant was not arrested for this crime until 1975. During the second trial which commenced on July 7, 1977, the defense relied upon the defense of alibi. One of the key witnesses in support of the alibi was appellant's mother who testified as to the whereabouts of her son on January 8, 1972 (the day he was alleged to have gone to the scene of the crime to plan it) and January 10, 1972 (the day the crime was committed). On rebuttal the Commonwealth called Officer Beels who testified that he had questioned Mrs. Bolden on February 15, 1972, who then stated she had not seen her son since January 6, 1972. This was in direct conflict with Mrs. Bolden's testimony.*fn3 The importance of this ...