Appeal from the Order of the Superior Court entered 7/23/87 at No. 2836 Phl. 1986 reversing the judgment of sentence by the Court of Common Pleas on 10/16/86 at No. 245-251 December Term 1976.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Laurie Magid, Philadelphia, for appellant.
Jeremy Gelb, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, J., concurs in the result. Nix, C.j., files a dissenting opinion in which Zappala, J., joins.
On November 26, 1976 at approximately 11:05 p.m., a Philadelphia Police Officer received a description over his van radio of a male who had just raped and robbed two women.*fn1 While receiving this information the officer observed appellee, Leonard Hutchinson, who matched the description. Mr. Hutchinson was stopped by the officer, placed in the back of the officer's police van, and taken some five blocks to the scene of the crime for identification purposes. While he was being escorted out of the back of the van one of the victims unhesitatingly identified appellee as the assailant. Moments later Mr. Hutchinson was displayed to the other victim who also responded in like fashion. Mr. Hutchinson was then arrested.
Leonard Hutchinson was found guilty by a jury in the Court of Common Pleas of Philadelphia on September 23, 1977, of rape, involuntary deviate sexual intercourse, and robbery.*fn2 Post-trial motions were denied and appellee was sentenced to a period of incarceration of thirteen to sixty years. Appeal was taken to the Superior Court which
affirmed the judgment of sentence. Allocatur was denied on January 16, 1980. Subsequently, appellee, acting pro se, filed a petition for relief under the Post Conviction Hearing Act,*fn3 in which he requested a new trial. This petition was later amended by counsel. His primary claim was that trial counsel was ineffective.
Following an evidentiary hearing the PCHA court denied requested relief and appellee appealed to the Superior Court. That Court, by per curiam order, 370 Pa. Super. 647, 533 A.2d 1075, reversed the lower court and remanded for a new trial.*fn4 The Commonwealth then filed a petition for allowance of appeal which was granted. We now reverse the order of the Superior Court.
The issue before the Court is whether trial counsel provided ineffective assistance of counsel when he failed to introduce a prior consistent statement which had been uttered by Mr. Hutchinson. The facts relevant to a resolution of this issue are as follows.
After formal arrest and while still in custody the following statement was purportedly made by appellee: "I have been at my grandmother's house on Camac Street and was going home when a cop stopped me. I ...