Appeal from the Judgment of Sentence July 22, 1986 in the Court of Common Pleas of Philadelphia County Criminal Division, No. 1353-1362 June Term, 1985
John Packel, Assistant Public Defender, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
Melinson, Hoffman and Cercone, JJ.
[ 375 Pa. Super. Page 499]
This case is a direct appeal from judgment of sentence entered following appellant William Flanagan's conviction, by jury, of rape, kidnapping, and involuntary deviate sexual intercourse (IDSI). Following the denial of post-trial motions, the court imposed consecutive sentences for incarceration of ten (10) to twenty (20) years for rape and five (5) to ten (10) years for kidnapping. A concurrent sentence of five (5) to ten (10) years was imposed on the IDSI charge.
Appellant's trial counsel filed the instant appeal from the judgments of sentence and, subsequently, filed a Petition to Withdraw as Counsel. Following a hearing, the lower court granted the petition. Present counsel was appointed to represent appellant in this appeal. After reviewing the entire record, on January 13, 1988, present counsel filed a "Petition for Remission of the Record for Evidentiary Hearing On Ineffective Assistance of Trial Counsel", with the Superior Court. This court deferred decision of the petition pending the filing of briefs for appeal.
The petition alleges, with substantial specificity, that trial counsel was ineffective in failing to call witnesses who would have testified that during the time of the alleged assault, appellant was with them watching a fire near the vicinity in which the assault occurred. The record is clear that trial counsel was aware of these potential witnesses prior to trial. In the remand petition, present counsel asserted that the witnesses had been interviewed by himself and that they had remembered seeing appellant at the scene of the fire. Attached to the petition was a report from the Philadelphia Fire Department which confirmed that there had been a fire at the alleged location, that the alarm for the fire had been entered at 3:59 a.m. and that the fire trucks, arriving shortly thereafter, left the scene at 6:16 a.m. (the assault allegedly occurred between 4:00 a.m. and 6:00 a.m. the same morning).
To find a deprivation of the constitutional right to effective
[ 375 Pa. Super. Page 500]
assistance of counsel,*fn1 this court must make an independent examination of the record. See Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 603, 235 A.2d 349, 352-53 (1967), the Pennsylvania Supreme Court set forth the test to be used when the issue is whether counsel was effective. In Maroney, the Court stated:
[B]oth counsel and the courts must recognize that the main issue is whether the accused's rights have been adequately protected. . . .
[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding ...