Commonwealth v. Hawkins

WATKINS, Judge,

dissenting:

I respectfully dissent.

Officer Edward Maenner was the only other witness to testify on behalf of the Commonwealth. He stated that on November 16, 1977, at about 12:15 A.M., he had his partner stopped their patrol wagon at the corner of 19th and Mountain Streets to look for the appellant in a bar located there. He knew that the appellant frequented that bar and he was aware that there was an arrest warrant outstanding for the appellant. Officer Maenner, who was in uniform, attempted to enter the bar with his partner through the front door, and was able to see the appellant leave through a side door. He gave chase as the appellant ran down an alley, and after he fired two shots in the direction of the appellant, the appellant complied with his command to halt.

Edward W. Hawkins, the appellant, testified that on October 31, 1976, he acted as a go between in a drug transaction involving Mr. Auston as seller and a friend of the appellant as buyer. On November 1, 1976, according to the appellant, he was told by his buyer-friend that the drugs he had obtained the night before were “garbage”, and that he wanted his money back. The appellant testified that after confronting Mr. Auston with the buyer’s demand and arguing with Mr. Auston about it, Mr. Auston told him to take the money and not come back. The appellant said that Mr. Auston gave him ten dollars more than the price of the drugs he allegedly sold, but was unable to explain why he did this.

Appellant’s attorney called George Blackman, a friend of the alleged victim as a defense witness, who corroborated the victim’s testimony completely. No surprise was pled by the appellant’s attorney. All the parties involved knew each other. By calling Blackman he destroyed the credibility of the appellant.

It seems certain that counsel placed Blackman on the stand without any knowledge of what his testimony would be because if he had interviewed the witness and was given the story as told by the witness he wouldn’t have called him and if he gave a different version then he should have pled surprise.

In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), the Supreme Court held that the court’s inquiry ceases and counsel’s assistance is deemed constitutionally effective once the court is able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. It is impossible to see how the testimony of Blackman had any reasonable basis to effectuate his client’s interest in the instant case. By no standard of reasonableness could such trial conduct be excused. No trial strategy for the defense appears. This was a blatant error of commission not as most errors (omission) which have led to a finding of denial of effective assistance of counsel.

I would reverse the judgment of sentence and grant a new trial.