A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The Superior Court of Pennsylvania en banc has issued a ruling in the case of COMMONWEALTH of Pennsylvania, Appellant v. Edward E. STEWART, Appellee, No. 393 EDA 2012, 2013 WL 6449457, 2013 PA Super 317 (Dec. 10, 2013). This was a Commonwealth appeal from a PCRA Order of Judge M. Teresa Sarmina of the Court of Common Pleas of Philadelphia County, Criminal Division, CP–51–CR–0410601–2006, granting Edward E. Stewart a new trial. The case was before Judges  BENDERFORD ELLIOTTBOWES,PANELLADONOHUESHOGANLAZARUSOLSON, andWECHT. Judge Bowes write the Court’s Opinion. There was no dissent.

In this murder case, Stewart’s alibi witness, his fiancée Ms. Grazier, telephoned trial counsel and spoke to him about testifying as an alibi witness. Appellee informed the court that he wished Ms. Grazier to testify. Ms. Grazier was present in the courtroom and available to testify at that time. Ms. Grazier, in an affidavit, set forth that she would testify consistently with Appellee’s trial testimony, i.e., Appellee was home with her at the time of the murder. Ms. Grazier testified at the evidentiary hearing consistently with that affidavit. Counsel did not meet with Ms. Grazier, nor did an investigator speak with her. Ms Grazier did not testify. The Appellee maintained that trial counsel’s statement to the PCRA court that he did not tell him of his alibi witness until the day before trial was not true.

In granting a new trial, the PCRA court made credibility determinations and factual findings in Appellee’s favor, and the Superior Court was bound by the PCRA court’s credibility decisions. Most importantly, the PCRA court did not find credible trial counsel’s explanation for failing to interview or call the witness, since he allowed his client to testify as to the same alibi that Ms Grazier would have testified to.

The alibi witness’s testimony that Appellee was with her at the time of the commission of the crime could have benefitted him and cast doubt on the testimony of the sole prosecution eyewitness. While it is true that the Commonwealth could have sought to impeach her credibility, it is unsound practice for trial counsel to judge the credibility of a witness without prior experience with the witness or interviewing that person. Thus the Court agreed with the PCRA court’s conclusion that there was a reasonable probability that the alibi witness’s testimony could have altered the outcome of the proceeding and therefore affirmed.

Janis Smarro, Esq., of Philadelphia represented the Appellee. A panel of the Court had initially reversed Judge Sarmina’s decision but an application for reagument en banc was granted.

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