*2 WATKINS, and JJ. PRICE, Before CAVANAUGH CAVANAUGH, Judge: 17, trial, appellant, a 1975, following
On April robbery. found Post Matt, guilty Ronald Vernon was were the court en trial motions denied and dismissed by was a term 18, 1975,Matt sentenced to banc. On October Matt, his by of four to imprisonment eight years. counsel, lower court. Com- and we affirmed the appealed 98, 777 Matt, (1977). v. 249 375 A.2d Pa.Super. monwealth us the attacks his In matter now before appellant Act petition. of Post Conviction way Hearing conviction a denied claims has been his appellant petition counsel; assistance of and right constitutional to effective the trial court’s that his was defective due to sentencing of Commonwealth comply requirements failure to with the 115, v. 474 A.2d 140 The lower Riggins, court, has been retroactive recognizing Riggins given 85, Kostka, in v. 475 Pa. 379 A.2d Commonwealth application resentenced,1 but ordered that Matt be dismissed (1977), without This fol- remaining appeal claims as merit. We lowed. reverse. the Common-
Perceived in the most favorable to light Lee, v. wealth, see Commonwealth Irvin, Commonwealth (1975); is, therefore, propriety appellant’s sentence not before us. 1. The at trial. (1978), was adduced On Febru- Feist, ary robbery, Joseph 1975 the victim of the met stereo from one appellant purchase discussed appellant friends. Later in the and Feist day them to third who was to drive see the joined person grabbed stereo. While in car the a spatula appellant and held it to throat. He demanded the the victim’s victim’s money, punched against him forced his head the dash- board. While the victim was so positioned, appellant removed him. According appellant from $140.00 and Feist had day been earlier and that playing as a result him claimed Feist owed Matt that the $55.00. scuffle in the car arose due to his efforts recover the gambling debt. admitted that he tried to Appellant get Feist, from that he with money struck him his hand and *3 However, to hit him with attempted he spatula. denied taking victim, The on any Feist, the other money. hand denied losing to Matt while pool and playing $55.00 stated that he did not know how to pool. play
First we will consider claim ineffective assistance of counsel. We have often stated the test for determining whether counsel has been effective: We however, cannot emphasize strongly enough, that our inquiry ceases counsel’s is assistance deemed constitu- once tionally effective we are able conclude to that the particular course chosen counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, evaluation employing hindsight of the record. Although weigh must, we alternatives the balance tips favor soon as finding effective assistance as it is deter- mined that trial counsel’s had any decisions basis.
Commonwealth ex rel. Washington Maroney, 604-05, 352-53
As above, noted part as defense claimed Matt’s he had been on pool with Feist playing of the day alleged During robbery. cross-examination Common- the attend- to the whereabouts Matt as
wealth questioned Matt’s testimony. corroborate might ant at the hall who pool place: The following exchange that day? there pool were Q long you playing How hour, an if that long. than A more than—no more No hour’s time? to in one you You mean he lost Q $55 hour, an yeah. A Less than than an hour? Q Less
A Yeah. he in the courtroom
Q Is that hall attendant—is here? Do see him here? you to that. object
MR. PASLINE: overruled. objection THE COURT: BY MR. FREEDBERG: there, don’t that was the attendant
Q. The man you? Do today. see him in the courtroom here No, I don’t. A. that you— bear out
Q. your story And he could that. object MR. I’m going PASLINE: THE Overruled. COURT: BY MR. FREEDBERG: out he was He can bear
Q there. According you, between game that there was a your story Feist. Isn’t that correct?
A Not necessarily. he?
Q Well, he was there. Wasn’t A Yes. He was there. *4 not the con- question appellant trial counsel did
Appellant’s charge the to the the jury During the attendant. cerning court stated: room was not operator
The room owner or the and did not called as a witness the defendant this, wish, if conclude you may, you In of testify. light testified, would have been testimony that had he his defendant, but cannot reach that you unfavorable to the conditions conclusion until are sure that the First, have the must have given not been met: defendant
297 no witness did not the explanation why of must conclude that the witness testify. Secondly, you would have some or information knowledge important case; third, your and, this that he must have decision in called, been more been more available to and had he likely to be favorable defendant than Commonwealth. If met, them, those are Ias have outlined then conditions conclude that may the owner’s would have testimony been defendant, unfavorable to the who him, failed to call but even if then, those conditions do not exist, course, you are not to draw required that conclusion. is consistent charge with the “missing witness
rule” which provides that a negative inference be may drawn from a party’s failure to call a corroborating witness who was in his control:
The criteria for
when
determining
an inference can
be drawn
properly
from
failure
a
to call a
party
witness are well-settled.
‘Where evidence which would
be
properly
part
a case is within the control of the
whose
party
interest
it would
be to
naturally
produce it,
and, without
explanation
so,
he fails to do
satisfactory
jury may draw
it would be
an inference that
unfavorable
Hardcastle,
him.’ Wills
(1902);
v.
529
Brooks,
492, 496,
Green v.
215 Pa.
64 A.
(1906);
Haas
v. Kasnot,
580, 584, 585,
At the PCHA hearing following exchange place during direct examination of appellant’s trial coun sel, Harris Pasline:
Q So you made no attempt find attendant any the pool hall?
A I didn’t feel it was relevant, until Mr. Freedberg it out brought trial, at objected and which I to. Q you did not cross-examine redirect with [But or] respect to his prison status. Did you?
A That always delicate situation and that is a decision that’s made there on the spot. must assume that if I made a decision not to discuss it with—his prison record, I did feel that was also detrimental to his case. The lower court held that trial counsel’s decision not to inform the appellant was in prison was not ineffec- tive in that it had “at least some reasonable basis designed to effectuate his client’s However, interest.” the record ant alleged committed beyond the crimes a reasonable doubt.” 444
Pa. at
Gentlemen, is there wish me to add to this anything you charge?
MR. No, honor. FREEDBERG: your (the place bar:) discussion took at side MR. in problems PASLINE: One of the also bringing witness in, on, which did not is the fact charge that is in prison, it, know, which for makes difficult him to out go and find this person.
MR. FREEDBERG: is no There evidence to that effect. THE COURT: You lawyer. are his This contradicts trial at the counsel’s PCHA hear- ing. Just as the be hindsight benefit of cannot used to tactic, particular determine the trial reasonableness benefit of cannot be used to transform counsel’s hindsight omission into a tactical Thus decision. counsel’s failure explain absence of the witness be corroborating cannot said to have had a basis so as to effectuate If had interests. evidence been admitted that was Matt incarcerated objection charge should have been was, As it was permitted sustained. infer that the testimony of this attendant would have been adverse to Therefore, appellant. we hold the appel- lant was denied the effective assistance of counsel entitled to a new trial.
In view of disposition, our not address the appel- we need lant’s arguments. remaining
Order reversed. New trial granted.
WATKINS, J., files dissenting opinion.
WATKINS, Judge, dissenting: I respectfully dissent. the defendant’s Although trial counsel might have handled this fashion, matter a better cannot say one, isolated incident during which is cited by the as the reason Majority for its holding amounts to ineffective assistance of counsel.
A defendant is not to a “perfect trial”, entitled but is merely entitled to a fair trial. Under all of the circumstanc- es of case, this I believe that the defendant in the instant case was given a fair trial. *7 Pennsylvania
COMMONWEALTH of ex rel. Margaret HEIMBROOK Wayne HEIMBROOK, Appellant.
Superior Court of Pennsylvania.
Argued Feb. 1981.
Filed Feb.