Commonwealth v. McKenna

446 A.2d 1274, 498 Pa. 416, 1982 Pa. LEXIS 548
Supreme Court of Pennsylvania·Decided June 30, 1982·No. 80-3-549·Published·Cited by 23 cases

Opinions

OPINION

McDERMOTT, Justice.

This is an appeal from the order of the Honorable Evan S. Williams, President Judge of the Court of Common Pleas of Bradford County, denying appellant relief under the Post Conviction Hearing Act (“PCHA”).1

On December 9,1974, after a lengthy jury trial, appellant, Gerard Paul McKenna, was convicted of rape and first degree murder in connection with the brutal slaying of a sixteen year-old girl. The jury prescribed the death penalty for appellant’s murder conviction.2 On direct appeal to this Court, we upheld both convictions, but vacated appellant’s death sentence and remanded the case for resentencing on the murder conviction. See Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978) (“McKenna I”). Appellant was sentenced to a term of life imprisonment for his first degree murder conviction on April 17, 1978. These PCHA proceedings followed.

Post conviction hearings were held on August 21 and October 3, 1979. The court of common pleas, per President Judge Williams, denied the requested relief and appellant appealed to this Court. The Commonwealth and appellant submitted the case on their briefs,3 and, on January 29,1982, we filed an opinion and order reversing the PCHA court. We subsequently granted the Commonwealth’s petition for reconsideration and, on April 2, 1982, we ordered that the parties prepare the case for oral argument during our April session. See Pa.R.A.P. 2311(b). Having carefully considered the entire record, the briefs and the able oral argu[419] ments of both sides, we now vacate our order of January 29, 1982 and affirm the order of the PCHA court.4

Before this Court appellant most strenuously argues his claim that trial counsel was ineffective in failing to present a material and favorable defense. The gravamen of this contention is that trial counsel had material witnesses to offer in support of appellant’s alibi defense but did not call them, because he believed a new trial would be granted on appeal.5

At the PCHA hearing, appellant’s chief trial counsel, Thomas Walrath, Esquire,6 did in fact testify that he believed the errors of the trial court sufficient to require a new trial and that he had, therefore, substantially abandoned the alibi defense.7 See generally, N.T. PCHA 8/21/79 [420] pp. 60-80. We shall refrain from comment, for the purposes here, upon such unprofessional conduct, as there is no merit to appellant’s contentions.

Defense counsel Walrath testified that, if he had fully presented the alibi defense, he would have called Dr. Irving Sopher, the defense’s forensic pathologist, to fix the time of death, a consideration relevant to the alibi. Dr. Sopher was called at the PCHA hearing, not by appellant, but by the Commonwealth, and he testified as follows:

[SPECIAL PROSECUTOR]: Do you know why it was that you were not called as a witness in this case?
[DR. SOPHER]: I think one of the main ... my main impression is after discussing with Mr. Walrath by phone as to whether I would be brought to testify or not was the fact that my testimony in view of the fact that I could not exclude a six-day postmortem interval, that this would merely corroborate prosecution evidence in this particular case and that perhaps it may be in the best interest of the defendant that I not testify. * * * * * *
[I]t was the final decision of Mr. Walrath that my testimony in this case I think primarily would corroborate the prosecution evidence and would, therefore, substantiate the prosecution evidence on time of death and it may be in the best interest of the client that I not testify.

N.T. 10/3/79 pp. 83, 96 (emphasis supplied). The PCHA court, which heard all the evidence, expressly credited Dr. Sopher’s assertion that his testimony would have merely corroborated the Commonwealth’s position. Opinion of Williams, P.J., at 6. (Opinion filed April 22, 1980). Not only would Dr. Sopher have fortified the Commonwealth at trial, but he specifically contradicted Mr. Walrath’s PCHA testimony as to the reason he was not called. The soundness of Judge Williams’ findings on Dr. Sopher’s credibility cannot [421] be faulted by reviewing the synthetic testimony of Mr. Walrath.8

The same note of artificiality pervades Mr. Walrath’s testimony concerning the contention that there were other exculpatory witnesses who might have been called, including appellant himself, State Trooper John P. George, Deputy Coroner Arthur B. King and “five or six other witnesses” whom Mr. Walrath was unable to identify. N.T. PCHA 8/21/79 p. 59; N.T. PCHA 10/3/79 pp. 20-23.

None of these allegedly exculpatory witnesses was ever produced by appellant during the PCHA proceedings. Appellant has utterly failed to sustain his burden of proving that the testimony of the witnesses would have strengthened the defense. See Commonwealth v. Robinson, 292 Pa. 633, 435 A.2d 255 (1981); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). In fact, as the PCHA court noted, what evidence there was indicated that the testimony of the allegedly favorable witnesses would have had a harmful effect or no effect at all on the defense.9

Free access — add to your briefcase to read the full text and ask questions with AI

Commonwealth v. McKenna, 446 A.2d 1274, 498 Pa. 416, 1982 Pa. LEXIS 548 (Pa. 1982).

446 A.2d 1274 (Commonwealth v. McKenna) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Com. v. Baker, J.
Superior Court of Pennsylvania, 2016
Com. v. Beal, M.
Superior Court of Pennsylvania, 2014
Commonwealth v. Goodenow
41 Pa. D. & C.4th 383 (Bradford County Court of Common Pleas, 1999)
Commonwealth v. Carbone
707 A.2d 1145 (Superior Court of Pennsylvania, 1998)
Commonwealth v. Jackson
585 A.2d 36 (Superior Court of Pennsylvania, 1991)
Commonwealth v. Harper
516 A.2d 319 (Supreme Court of Pennsylvania, 1986)
Commonwealth v. Griffin
515 A.2d 865 (Supreme Court of Pennsylvania, 1986)
Commonwealth v. Fuller
509 A.2d 364 (Superior Court of Pennsylvania, 1986)
Commonwealth v. Forrest
498 A.2d 811 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. McNeil
487 A.2d 802 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Murray
488 A.2d 45 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Smith
467 A.2d 1307 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Moore
468 A.2d 791 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Radogna
464 A.2d 478 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Anderson
461 A.2d 208 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Wade
461 A.2d 613 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Schwartz
450 A.2d 133 (Superior Court of Pennsylvania, 1982)
Commonwealth v. McKenna
446 A.2d 1274 (Supreme Court of Pennsylvania, 1982)