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July 1, 1988

Mark McKenney
Charles Zimmerman

The opinion of the court was delivered by: BRODERICK


 Petitioner Mark McKenney, currently confined at Graterford, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Petitioner claims that his defense counsel's failure to interview a witness, Perry Ford, was ineffective assistance of counsel. The Magistrate to whom the petition was referred for a report and recommendation, recommended granting the writ of habeas corpus based on ineffective assistance of counsel. The District Attorney filed timely objections to the Magistrate's report and recommendation. After a de novo review of the record, the Court has, for the reasons set forth below, determined that petitioner's claim of ineffective assistance of counsel is without merit and will deny the grant of the writ of habeas corpus.

 Petitioner was found guilty of first degree murder, two counts of aggravated assault, two counts of recklessly endangering another person, and possessing an instrument of crime, for which he was sentenced to life imprisonment and concurrent terms of five to ten years for each aggravated assault conviction, one to two years for each reckless endangerment conviction, and two and one-half to five years for the weapons offense. Petitioner appealed to the Pennsylvania Superior Court, claiming ineffective assistance of counsel. The Superior Court determined that there was no merit to petitioner's claim of ineffective assistance of counsel. The Pennsylvania Supreme Court denied allocatur.

 On the first day of trial, in a colloquy conducted by the Court, petitioner waived his right to a jury trial and indicated by his answers that he understood the significance of the waiver and the charges against him, that he was not under the influence of any drugs or alcohol, and that he had never received any psychiatric care. It was further established that petitioner was twenty-five years of age, and had completed his schooling through the ninth grade. (N.T. 1-14).

 The Commonwealth called as witnesses two victims of the shooting, Richard Gardiner and Ronald Cain, each of whom testified that on June 12, 1982 at approximately 8:00 p.m., petitioner approached them and Wayne Johnson, who was with them, at 39th and Poplar Streets in Philadelphia in front of a bar. Petitioner began arguing with Johnson over Johnson's refusal to repay a loan. (N.T. 20-22). Petitioner and Johnson began to spar around, and Johnson hit petitioner on the chin. Johnson apologized and petitioner accepted Johnson's apology. (N.T. 22, 53). Petitioner then walked away but returned in approximately fifteen minutes with a gun. (N.T. 23, 54). After spotting petitioner, Johnson walked toward him. The two walked down Poplar Street toward Cain and Gardiner and were talking. (N.T. 23-24, 54-55). Johnson reached over and touched the butt of petitioner's gun which was visibly protruding from petitioner's pocket. Petitioner walked away, looked around, and fired approximately six shots. (N.T. 24-26, 55-56). Two struck Johnson, and he fell to the ground. Petitioner also shot Cain and Gardiner. (N.T. 26-27, 56). Johnson was pronounced dead at Presbyterian Hospital. (N.T. 18-19). Gardiner and Cain were both hospitalized. (N.T. 26-27, 56-57).

 A third witness, Norman Bryant, who was in the bar, testified that he heard gunshots outside the bar, and when he went outside he saw the decedent Johnson on the ground. He also stated that he saw the petitioner point a gun inside the bar and click it four times. (N.T. 73).

 The defense called petitioner to testify. He stated that he had been drinking, getting high, smoking reefers, and had taken some pills on the day of the incident. (N.T. 83). He also testified that he could not remember anything concerning the events of June 12, 1982. (N.T. 86-91). He did testify that after the incident he left his home in New Jersey and lived in New York and Florida, until he was arrested in August of 1983, fourteen months after the shooting. (N.T. 94-97). The defense also called petitioner's father who testified that on the day of the shooting petitioner appeared "high." (N.T. 110, 112).

 On the second day of trial, counsel for the petitioner stated to the Court that his next witnesses had not "arrived yet." The Court recessed for one hour and upon the Judge's return to the bench, defense counsel informed the Court that his witnesses had still not arrived. Defense counsel then explained to the Court that the witnesses had informed petitioner's family that they would appear voluntarily and testify. (N.T. 113-114). Defense counsel then asked for and was granted a continuance until the next day. Defense counsel stated to the Court that he would serve a subpoena on the witnesses, and that he would request a bench warrant in the event they failed to appear pursuant to the subpoena. (N.T. 115, 118).

 At the opening of the third day of trial, defense counsel approached the bench and informed the court that defense witnesses Perry Ford and Robert Dorsey had failed to appear although subpoenas had been served on them. Defense counsel stated that he personally served one subpoena and the petitioner's sister served the other. The following colloquy occurred between defense counsel and the Court concerning the witness Perry Ford:

MR. BERRY: Now, Your Honor, you are about ready to issue a bench warrant for these two witnesses; but after a conference with my client, he has indicated to me that he did not want these witnesses to come in.
THE COURT: Not that he does not want these witnesses to come in, he doesn't want to wait for these witnesses. In other words, if these witnesses arrived he would call them to testify; is that correct?
MR. BERRY: Yes, sir. If they had been here, but we waited for them yesterday, and they were not here yesterday, and they had told the family, and one had called the family, and said he would be here, and the father had talked to Mr. Dorsey, and he said he would be here, and no one showed yesterday.
THE COURT: All right. Now as far as Perry Ford, what would he have testified to, if he were here?
MR. BERRY: It is my understanding, Your Honor, because I didn't talk to Mr. Ford. Mr. Ford had talked to the mother of the defendant and I talked to the mother, and Mr. Ford had talked to the sister of the defendant and I talked to the sister.
THE COURT: According to your interpretation he would testify to --
MR. BERRY: He would have testified that he was there, saw what happened and that if he were called to testify, he would say that, I believe, that the defendant did not go back to get a gun and that these three individuals, all three of them, jumped on the defendant and beat him right there at 39th and Poplar.
THE COURT: But would he have testified that the defendant shot the --
MR. BERRY: Yes, he would have.
* * * *
THE COURT: Mr. Ford was the witness who would testify that the three jumped on the defendant.
MR. BERRY: Yes, sir.
THE COURT: And that the defendant --
MR. BERRY: Shot --
THE COURT: In self-defense.
MR. BERRY: Yes, Your Honor, yes.
THE COURT: Because the defendant testified that he didn't ...

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