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COMMONWEALTH PENNSYLVANIA v. JOYCE EARLY (05/16/88)

submitted: May 16, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
JOYCE EARLY, APPELLANT



Appeal From the PCHA of January 6, 1988, In The Court of Common Pleas of Dauphin County, Criminal Division No. 2661 DC.D 1985

COUNSEL

Francis M. Socha, Harrisburg, for appellant.

Deborah S. Essis, Assistant District Attorney, Harrisburg, for Com., appellee.

Olszewski, Watkins and Cercone, JJ.

Author: Cercone

[ 377 Pa. Super. Page 220]

This appeal is from the denial by the Court of Common Pleas of Dauphin County of appellant's petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. The lower court denied appellant's PCHA petition without a hearing on January 6, 1988.

[ 377 Pa. Super. Page 221]

On February 13, 1986, appellant was found guilty following a jury trial of a single count of robbery. Appellant did not file post-trial motions, and she was sentenced on March 12, 1986 to a term of imprisonment of not less than five nor more than ten years. The sentence imposed represented a mandatory minimum because of the visible possession of a firearm during the robbery. See 42 Pa.C.S.A. § 9712. Thus, a motion to modify sentence was not filed; nor was there an appeal therefrom.

The facts upon which this action arose were stated by the PCHA court below as follows:

On the morning of September 23, 1986, the Paxton Pub, located at 1619 Paxton Street in the City of Harrisburg, was robbed by a woman wielding a handgun. The victim, Karen Arnold, testified that she reported to work as a bartender at approximately quarter of eleven and saw a girl sitting at the bar. Mrs. Arnold was engaged in conversation with the girl about two minutes when the girl pulled out a gun and demanded all the money. One hundred and fifty dollars ($150) in paper currency was taken. Mrs. Arnold was able to recount a detailed physical description of the assailant (N.T. 11-12) and was able to select petitioner's photograph out of 16 different pictures (N.T. 14, 25). She identified petitioner, at the photo array and at trial, without hesitation. (N.T. 15, 25). The next Commonwealth witness, Gary Lanke, testified that he was the manager of the Paxton Pub on the day of the robbery. He indicated that a woman came in the bar and asked to use the restroom. She then ordered a draft beer from him at the bar across from the cash register. At this time, Mrs. Arnold reported for work and Mr. Lanke returned to the kitchen, where he remained until after the robbery. Mr. Lanke also identified petitioner at the photo array and at trial. (N.T. 20-21).

On appeal, appellant makes several allegations of ineffective assistance of counsel. She also contends that the lower court erred in not granting an evidentiary hearing on the

[ 377 Pa. Super. Page 222]

    allegations of ineffectiveness contained in the PCHA petition. We will address each of appellant's arguments.

Appellant's first contention is that trial counsel was ineffective for failing to call a known alibi witness in her defense at trial. The lower court addressed this argument in its opinion and noted that the witness to whom appellant refers, Mary Bellamy, was subpoenaed as a witness, but failed to appear. In addition, the lower court observed that appellant had testified that she had talked to Mrs. Bellamy "about something to ten when I started talking to her and didn't finish talking until after ten . . . ." The lower court reasoned that since the robbery did not occur until approximately eleven a.m., Mrs. Bellamy could not have testified as to appellant's whereabouts at the time of the robbery. Thus, the lower court found no ineffective assistance of counsel in the failure to call Mrs. Bellamy.

Appellant argues that the lower court's reasoning is erroneous because the times referred to in the proposed alibi notice and in the testimony of the Commonwealth witness are approximate times. In addition, Commonwealth witness Karen Arnold indicated that when she reported to work at approximately 10:45 a.m., she saw a woman whom she identified as appellant already at the bar. Thus, appellant contends, the ...


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