Commonwealth v. Ritchie

474 A.2d 324, 326 Pa. Super. 447, 1984 Pa. Super. LEXIS 4352
Superior Court of Pennsylvania·Decided April 6, 1984·No. No. 331·Published·Cited by 4 cases

Opinion

JOHNSON, Judge:

In January 1976, appellant Charles Ritchie was convicted by a jury of robbery and sentenced to a term of imprisonment of five to ten years. Following a hearing under the Post Conviction Hearing Act (PCHA),1 appellant brought an appeal nunc pro tunc from the judgment of sentence. This court vacated judgment and remanded for an evidentiary hearing on trial counsel’s diligence in securing the presence of alibi witnesses. Commonwealth v. Ritchie, 291 Pa.Super. 523, 436 A.2d 239 (1981).

Now before us is the appeal from the order of March 3, 1982 reinstating the judgment of sentence, following an evidentiary hearing.

The sole question presented is whether trial counsel provided ineffective assistance in utilizing certified mail to secure the presence of out-of-state witnesses, related to the defendant, without attempting to establish further contact with the potential witnesses by telephone or other means. On the record before us, we have no difficulty in finding counsel’s stewardship reasonable. Hence, we affirm.

Appellant was arrested on February 26, 1975 for the robbery of an Erie County motel. On May 8, 1975, a pro se Application to Continue was filed, requesting that his trial be continued from the May, 1975 Term of Criminal Court to the September Term on the basis that “witnesses who are presently in Mississippi” were “necessary for his presentation of a defense” and that the witnesses “[would] be able to be present for the September Term.” Although the record does not contain any order entered on the Application,2 it is clear that a continuance was granted, inasmuch as trial did not take place until January 1976.

The first entry of appearance of counsel was by the Public Defender’s Office on March 13, 1975. On September [451]*45115, 1975, the second of two assistant public defenders who represented appellant secured a second continuance based upon counsel’s having been just appointed and needing time to prepare an adequate defense. Then, on October 29,1975, the public defender(s) were replaced by private counsel whose stewardship is here under review.3

From the P.C.H.A. hearing transcript, we note that trial counsel had first been engaged by appellant’s father prior to counsel interviewing appellant at the Erie County Jail. A Motion for Continuance, citing the need for additional time to adequately prepare the case for the defense, and to permit contact with “witnesses crucial to the defense” was submitted by trial counsel and refused on October 30, 1975.4

When counsel interviewed appellant at the jail in preparation for trial, he was provided with the names and addresses of three witnesses whom appellant believed could provide an alibi defense. All of these witnesses were residents of D’Lo, Mississippi and related to the appellant through his mother. They were Effie Jackson, his grandmother; John “Spence” McGee, his step-grandfather; and Ruth Griffin, his aunt. All three witnesses lived in the same household in D’Lo.

On November 3, 1975, trial counsel mailed letters, with subpoenas enclosed, to each of the three Mississippi witnesses, with return receipt requested. The letter set forth:

“Of course I cannot force you to obey the subpoena since you are a resident of Mississippi, but it is essential for you to appear in Court on November 17, 1975, to help [appellant]. Thank you for your consideration of this matter.
Yours truly,
[trial counsel].”

[452] The return receipts introduced at the evidentiary hearing on remand confirm that the notices of the November 17th trial were received by the three witnesses on either November 7th or 8th.

In January, trial counsel again wrote to the Mississippi witnesses by certified mail to request their attendance at the trial scheduled for January 19, 1976. These notices were received by each of the three witnesses on January 9, 1976. Trial counsel thereafter received a letter postmarked January 12, 1976 at Smithdale, Mississippi, from Ruth Griffin indicating her inability to come to Erie and further stating that Effie Jackson, the writer’s mother, was under the care of a doctor and unable to make such a trip.

As this court noted on review of the direct appeal from judgment of sentence, trial counsel sought a further continuance at the beginning of trial on January 19, 1976, bringing to the trial court’s attention that the Mississippi witnesses were not available and that their testimony was a necessary part of appellant’s alibi defense. That motion was refused. The trial court did not abuse its discretion in refusing to grant the continuance. Commonwealth v. Ritchie, 291 Pa.Super. at 526, 436 A.2d at 241.

On this appeal, appellant argues that trial counsel’s efforts in seeking the attendance of appellant’s Mississippi relatives were insufficient to constitute effective assistance of counsel. He urges that at least one of the witnesses could neither read nor write and that counsel was somehow derelict in his duty by not having attempted to establish contact with the Mississippi witnesses by telephone. We reject this argument.

To examine a claim of ineffectiveness a two-step analysis is used:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether [453] the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.
Commonwealth v. Jennings, 285 Pa.Super. 295, 298-9, 427 A.2d 231, 232 (1981).

Commonwealth v. Golson, 310 Pa.Super. 532, 535, 456 A.2d 1063, 1065 (1983).

We have no difficulty in determining that the underlying issue, involving the right to present alibi testimony through third-party witnesses, is of arguable merit.5 We therefore can proceed directly to determining whether counsel’s course of action had some reasonable basis aimed at promoting his client’s interests.

Unlike the standard ineffectiveness claim, where counsel is charged with having done, or having failed to do, a specific and complete procedure or act, here counsel is charged with (a) having employed a procedure not fashioned to the peculiar characteristics of the witnesses sought to be summoned, and (b) having failed to exhaust all possible means of communicating directly with those witnesses.

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Commonwealth v. Ritchie, 474 A.2d 324, 326 Pa. Super. 447, 1984 Pa. Super. LEXIS 4352 (Pa. Ct. App. 1984).

474 A.2d 324 (Commonwealth v. Ritchie) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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