Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Butler County, C.A. No. 278 of 1984, Book 78, Page 292.
Donald D. Doerr, Jr., Butler, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.
Wieand, Popovich and Melinson, JJ. Melinson, J., files a concurring statement. Popovich, J., files a dissenting opinion.
[ 381 Pa. Super. Page 316]
This appeal is from an order dismissing a P.C.H.A. petition after hearing.
Robin S. Roxberry, having been tried by jury, was found guilty of kidnapping, rape, involuntary deviate sexual intercourse, robbery, and theft. He was sentenced to serve a term of imprisonment for not less than 13 1/2 years nor more than 27 years. The Superior Court affirmed the judgment of sentence, and the Supreme Court denied further appeal. Roxberry then filed a P.C.H.A. petition in which he alleged that trial counsel had rendered ineffective assistance. Counsel was appointed to represent Roxberry, and an evidentiary hearing was held. Post-conviction relief, however, was denied.
In this appeal from the order denying P.C.H.A. relief, Roxberry argues that trial counsel was ineffective for failing to present adequately an alibi defense. Specifically, he
[ 381 Pa. Super. Page 317]
contends that trial counsel failed to advise the prosecution that the defense intended to present an alibi defense, failed to move for a continuance of the trial when an alibi witness failed to appear, and failed to request a specific jury instruction on the alibi defense.
There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).
Appellant was not prejudiced by trial counsel's failure to give written notice of an alibi defense as required by Pa.R.Crim.P. 305C(1)(a). Defense counsel had orally notified the prosecuting attorney that an alibi defense would be presented, and the prosecuting attorney had agreed that he would not object because of the absence of written notice.*fn1
A subpoena had been issued for a disinterested, alibi witness, but on the day of trial the witness failed to appear. Appellant now argues that trial counsel was ineffective because he failed to move for a continuance of the trial. This argument, however, is not properly before this Court. The issue was not raised in appellant's P.C.H.A. petition, was not argued at the evidentiary hearing, and was not
[ 381 Pa. Super. Page 318]
considered by the P.C.H.A. court. Therefore, it has been waived. Although defense counsel testified at the P.C.H.A. hearing that he had suggested a motion for continuance to appellant when the witness failed to appear and that appellant had vetoed the suggestion,*fn2 the failure to request a continuance was not alleged to be an instance of ineffectiveness until appellant filed a brief in this Court.*fn3
Appellant's defense at trial was that the victim had mistakenly identified him as her assailant. He said that, contrary to the victim's testimony, he had been bearded at the time when the offense had been committed. Two witnesses corroborated this testimony. Appellant also testified that on the night when the victim had been kidnapped and raped he had been drinking in a bar with a friend until the bar closed, after which he had gone to his friend's home. The trial court instructed the jury on this issue as follows:
The critical question for you to decide is whether or not the defendant was the actor in the event that took place between eleven p.m. and one a.m. on the ninth and tenth of January. In behalf of the Commonwealth you have the testimony of [the victim] particularly as to the description of the assailant, the composite she put ...