Commonwealth v. Gray

TAMILIA, Judge,

concurring and dissenting:

I agree with the majority’s conclusion that this case should be remanded for an evidentiary hearing regarding the strategy chosen by appellant’s counsel whereby he referred to the photographic array, which contained appellant’s photograph, during cross-examination and moved to admit the array into evidence. In view of the fact that the appellee has acknowledged that this strategy presented a degree of risk, it requires remand for an evidentiary hearing in order to evaluate appellant’s claim of ineffective assistance of counsel. This result is mandated by the present state of the record, which contains no explanation for counsel’s trial strategy. As such, the present record is inadequate to make an informed determination of the claim possible. Commonwealth v. Reyes, 321 Pa.Super. 149, 467 A.2d 1173 (1983). In addition, I concur with the majority’s conclusion that the lower court acted properly in sentencing appellant on both counts of robbery. See Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984).

I respectfully dissent, however, from the majority’s decision to remand for an evidentiary hearing regarding trial counsel’s ineffectiveness for failing to interview potential alibi witnesses as this claim is without merit. It is well-settled that the failure of trial counsel to call a potential alibi witness does not constitute ineffective assistance unless there is some showing that the testimony of the absent witness would have been helpful in establishing the asserted defense. See e.g., Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982); Commonwealth v. McIntyre, 492 Pa. 306, 424 A.2d 874 (1981); Commonwealth v. Hoyle, 274 Pa.Super. 220, 418 A.2d 376 (1979). Trial counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness *393and that the attorney, without investigation and without adequate explanation, failed to call the witness at trial. Commonwealth v. Hollerbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982).

In the instant case, appellant took the stand in his own defense and when asked by trial counsel if he knew where he was on the day of the alleged incident, appellant replied, “No, I don’t.” (N.T. 155). Appellant’s answer to this inquiry belies the claim which he asserts and negates the need for alibi witnesses since appellant admits he did not know where he was on the day of the incident. Moreover, appellant’s testimony is devoid of any indication that he advised trial counsel of the existence of alibi witnesses. Consequently, it appears that appellant has made a bald assertion of ineffective assistance of counsel which is unsupported by both the facts of the present case and the law of Pennsylvania.

Our Supreme Court has recently held that “where it is clear that allegations of ineffectiveness of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.” Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984) (citation omitted). As appellant’s alibi defense would have been fruitless in light of his own uncertainty as to his whereabouts on the day the incident occurred, trial counsel cannot be deemed ineffective for failing to pursue this line of defense. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Finally, this Court has recently held that after a defendant has shown counsel was ineffective as defined under the by now familiar precepts of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) and its progeny, in order to be entitled to a new trial, he must show that counsel’s deficient performance resulted in prejudice. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984) (citing with favor the ineffectiveness standard announced by the United States Supreme Court in Strickland *394v. Washington, 466 U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Here, the appellant has unequivocally failed to establish the necessary degree of prejudice to satisfy this requirement.

Accordingly, I would limit the evidentiary hearing on remand solely to the issue of trial counsel’s ineffectiveness for referring to appellant’s photograph during cross-examination and eliciting that they were derived from police files, Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972).