Appeal from the Order of the Superior Court entered August 31, 1987, at No. 1555 Pittsburgh 1986, affirming the Order of the Court of Common Pleas of Mercer County entered October 27, 1986, at No. 581 Criminal 1981, Criminal Division. 371 Pa. Super. 643, 534 A.2d 130 (1987).
Lorinda L. Hinch, Supervisory Asst. Dist. Atty., Mercer, for appellant.
Paul R. Gettleman, Zelienople, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Zappala, J., files a concurring opinion. Nix, C.j., concurs in the result.
Appellee was convicted by a jury on charges of burglary,*fn1 receiving stolen property,*fn2 and criminal conspiracy,*fn3 in the Court of Common Pleas of Mercer County on April 21, 1982. He filed post-trial motions in which he alleged, inter alia, that he had been denied the effective assistance of counsel. On December 22, 1982, the court granted his motion for arrest of judgment on the conviction for receiving stolen property but denied his remaining claims. He was subsequently
sentenced to a term of eleven (11) to twenty-three (23) months confinement on the burglary conviction. He also received a suspended sentence on the conviction for criminal conspiracy.
Appellee then appealed to the Superior Court raising the issue of ineffective assistance of his trial counsel. That court, in a per curiam order, affirmed the trial court's judgment of sentence. Commonwealth v. Hentosh, 341 Pa. Super. 615, 491 A.2d 918 (1985). Appellee then petitioned this court for allocatur. That petition was granted, and by per curiam order we reversed the order of the Superior Court and remanded the record to the trial court for a hearing on the ineffectiveness claim. Commonwealth v. Hentosh, 509 Pa. 158, 501 A.2d 247 (1985). Following the hearing on remand the trial court found merit in appellee's ineffectiveness claim and granted him a new trial. On appeal the Superior Court affirmed the decision of the trial court. Commonwealth v. Hentosh, 371 Pa. Super. 643, 534 A.2d 130 (1987). The Commonwealth then petitioned for allowance of appeal. We granted this petition to examine whether appellee successfully demonstrated that the testimony of the missing witnesses on which he predicated his ineffectiveness claim would have been helpful to his cause.
The underlying facts of this case are these. Appellee operated a business in Greenville in which he dealt in buying and selling gold and silver, among other things. On occasion Mr. Louis G. Milliron of Greenville, Mercer County, an employee of National Gas Company, made service calls to the business. During the service calls he saw a sign in appellee's window stating that appellee was buying silver and gold. He engaged in conversations with appellee approximately four times prior to December 18, 1980, during which he told appellee of his coin collection. Mr. Milliron also told appellee that he had some silver he might sell. During the night of December 18, 1980, Mr. Milliron's home was burglarized. His coin collection and other items were stolen. The following day Mr. Milliron went to appellee's place of business to tell him that he was offering a reward
for information on his missing collection. There he observed Frank Shannon and Clyde Devore talking with appellee in the process of selling him a coin or coins. At the time Mr. Milliron was not close enough to the exchange to observe the coins in the transaction. However, he did observe on Shannon's wrist his watch which had been stolen in the burglary the night before. Mr. Milliron went across the street to the Greenville Police Department to inform them of his observations and then returned to the store. He announced that Shannon was wearing his watch. Shannon and Devore hastily took a check from appellee and left the store to be followed by Milliron who was soon joined by two policemen. The policemen took the two into custody after a brief pursuit. Shannon and Devore subsequently pled guilty to the Milliron burglary among others. Most of the items stolen from Milliron were recovered from Shannon and Devore. However, an 1881 Liberty ten-dollar gold piece was not recovered.
Shannon testified that on December 12, 1980, while in appellee's store with Devore, appellee gave him Milliron's name and told him the general area where he lived. He proposed that Shannon and Devore burglarized Milliron's home for the specific purpose of stealing the coin collection, and that he would share in its value with them. Shannon stated that he and Devore had consummated several prior deals with appellee. As an example he testified that appellee had directed them to his store in Warren, Ohio, for the purpose of fencing stolen guns, and that following appellee's directions they went there and sold them for $500.
On the night in question it was the burglars' intent to steal the coin collection which appellee had told them was in Milliron's home. Shannon testified that appellee in his post-burglary dealings with them did not want to be informed of the relationship between the items they sold him and specific burglaries. He did, however, want Shannon to let him know which articles were "hot" in order that he could melt them down quickly. Although appellee had instructed them to wait until things "cooled down" after the
Milliron burglary, Shannon testified that when they were observed by Milliron the next day they were in the process of selling a ten-dollar gold piece to appellee which ...