holding that to prevail on a claim of trial counsel’s ineffectiveness for failure to call a witness, a defendant must prove: (1) the witness existed; (2) the witness was available; (3) trial counsel was informed of the existence of the witness or should have known of the witness’s existence; (4) the witness was prepared to cooperate and would have testified on appellant’s behalf; and (5) the absence of the testimony prejudiced appellant
How later courts described this case
- holding that to prevail on a claim of trial counsel’s ineffectiveness for failure to call a witness, a defendant must prove: (1) the witness existed; (2) the witness was available; (3) trial counsel was informed of the existence of the witness or should have known of the witness’s existence; (4) the witness was prepared to cooperate and would have testified on appellant’s behalf; and (5) the absence of the testimony prejudiced appellant
- recognizing that Pa.R.E. 608(b) precludes the admission of specific instances of misconduct to attack a witness’ character for truthfulness; while Pa.R.E. 609(a) requires an actual conviction of a crime involving dishonesty or false statement in order for a witness’s credibility to be attacked with evidence of the crime
- concluding that “it is well established that certain out-of-court statements offered to explain the course of police conduct are admissible because they are offered not for the truth of the matters asserted but rather to show the information upon which police acted” (citations omitted)
- holding, "[t]rial counsel's failure to call a [potential witness] does not constitute ineffective assistance without some showing that the [potential] witness'[s] testimony - 15 - J-S28010-22 would have been beneficial or helpful in establishing the asserted defense"
Written by the judges who cited it.
The opinion
Justice NIGRO,
concurring.
I agree with the majority that Appellant is not entitled to relief but disagree with the majority’s analysis as it relates to Appellant’s claim that the trial court erred in ruling that the *626 prosecutor was allowed to question Appellant about whether his trial testimony regarding the events on the night of the Lunario murders was different from what he had maintained happened on that night for the five months following the murders. In rejecting this claim, the majority concludes that the trial court did indeed err in allowing this questioning, but finds such error to be harmless. I disagree that there was any error on the part of the trial court in the first instance, and therefore see no need to even reach the harmless error question.
As the majority points out, Appellant’s prior trial counsel testified at a PCHA hearing that Appellant had changed his story regarding his whereabouts on the night of the murders and subsequently, during Appellant’s second trial for the murder charges, the prosecutor used this testimony to challenge Appellant’s contention that he had never offered a different version of the events on the night of the murder from the one he was presenting at trial. On appeal, this Court held that this line of questioning — and in particular the prosecutor’s reference to Appellant’s discussions with his prior attorney-violated Appellant’s right to the effective assistance of counsel and to be protected against compelled self-incrimination. Commonwealth v. Chmiel, 558 Pa. 478 , 738 A.2d 406, 424 (1999) (“Chmiel II”). We made clear that this holding was based on the fear that the “use of testimony of prior counsel as in this case would have a chilling effect on defendants’ exercise of their right to the effective assistance of counsel.” Id.
In this case, the prosecutor again sought to question Appellant about whether he had ever maintained a story different from the one he was advancing at trial. Although the trial court concluded that the prosecutor could not reference any communications between Appellant and his prior attorney without violating Chmiel II, the court did allow the prosecutor to question Appellant whether, “exclusive of any discussions that he may have had with his counsel,” he had ever maintained a version of events on the night of the murders different from the one he had testified to at trial. Trial Ct. *627 Op. at 79 (quoting Dkt. Entry No. 405, p. 3). The trial court noted the possibility that Appellant “may have told [such a different version to] family, friends or fellow inmates,” id. at 78, and Chmiel II did not, according to the trial court, bar questions about any such statements made to non-privileged third parties.
As the Commonwealth argues here, and I agree, the middle road taken by the trial court in no way violates Chmiel II, which was plainly driven by the concern that allowing the Commonwealth to use the content of attorney-client conversations in a subsequent criminal trial would compromise the defendant’s right to effective assistance of counsel. By forbidding the prosecutor from referencing any discussions that Appellant had with his prior attorney, the trial court’s ruling below very clearly recognized Chmiel II’s underlying concern, and in my mind effectively removed it from this case. In the end, the trial court’s ruling merely allowed the prosecutor to explore whether Appellant had ever told someone, in a non-privileged setting, something about the night of the murders that was different from what he was telling the jury happened on that night. This was, in my view, an entirely proper tool of impeachment.
Thus, unlike the majority, I do not believe that the trial court erred here but because the majority finds such error to be harmless, I am able to join in the result the majority reaches.
Justice NEWMAN joins.