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HomeMy WebLinkAboutCP-21-CR-1435-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1435-2007 : JUSTIN MICHAEL WARNER : OTN: K531915-6 IN RE: PCRA PETITION MEMORANDUM AND ORDER In this case, the defendant has brought a petition under the Post-Conviction Relief Act alleging ineffective assistance of counsel. The defendant was found guilty, at a jury trial, on counts of corruption of minors and indecent assault stemming from an incident that occurred at the Regency Woods North neighborhood in Middlesex Township, Cumberland County. Prior to trial, the defendant had indicated to counsel that he could not have committed the alleged acts because, at the time, he was at his place of employment at the Valk Manufacturing Company. Counsel for the defendant had given notice to the Commonwealth of this alibi defense. On the eve of trial, counsel received records from Valk Manufacturing which made it clear that the defendant was not at work on the day in question. The defendant, claiming that his recollection was now refreshed, told counsel that on April 26, 2007, the date of the alleged incident, the defendant was actually at home caring for his mother who was ill. The home of which he spoke was located in the Regency Woods North neighborhood. Defense counsel chose not to assert an alibi defense but rather defended the case by attacking the victim’s credibility in other ways. The defendant now claims that his attorney was ineffective for not allowing him to testify with respect to his “new” alibi. The law, with regard to claims regarding ineffective assistance of counsel, is well settled. CP-21-CR-1435-2007 [W]e begin with the presumption that counsel was effective. A claimant establishes ineffective assistance of counsel when he demonstrates that (1) the underlying claim is of arguable merit; (2) that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate the appellant’s interest; and, finally, (3) that counsel’s action or inaction was prejudicial to the client. For an action (or inaction) by counsel to be considered prejudicial to the client, there must be a “reasonable probability that the outcome of the proceedings would have been different.” All three prongs of this test must be satisfied. If an appellant fails to meet even one prong of the test, his conviction will not be reversed on the basis of ineffective assistance of counsel. Com. v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004), citing Com. v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004). We are satisfied that none of the prongs of the test for ineffectiveness have been met in this case. First, the claim is not of arguable merit. Defense counsel could not have asserted the alibi even if he had wanted to. Notice of the alibi had not been filed in accordance with Rule Pa.R.Crim.P. 567. While the defendant may have been able to testify, his mother could not. Second, and in any event, defense counsel adopted a legitimate strategy by not calling witnesses to contradict the alibi defense previously disclosed to the Commonwealth. The fact that the defendant had asserted two contradictory alibi defenses, one prior to and the other during the trial, would clearly have done more harm than good. Finally, the outcome of the case would not have been different. To the contrary, by asserting that he was at home caring for his mother in Regency Woods he would have simply hastened a guilty verdict. This is because his own testimony would have placed him at the scene of the crime. 2 CP-21-CR-1435-2007 ORDER AND NOW, this day of August, 2008, the petition of the defendant for post- conviction relief is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Michelle Sibert, Esquire Chief Deputy District Attorney Allen C. Welch, Esquire For the Defendant :rlm 3 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1435-2007 : JUSTIN MICHAEL WARNER : OTN: K531915-6 IN RE: PCRA PETITION ORDER AND NOW, this day of August, 2008, the petition of the defendant for post- conviction relief is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Michelle Sibert, Esquire Chief Deputy District Attorney Allen C. Welch, Esquire For the Defendant :rlm