Question: My son was convicted of attempted murder at trial in Philadelphia. His lawyer didn’t call a witness that could have proved his innocence. I found out that he just graduated from law school and doesn’t have much experience. Can I appeal his conviction?
Answer: In Pennsylvania, after a defendant is convicted of a crime, he may appeal his conviction. There are 3 different types of appeals:
- Direct appeal to the Superior Court of Pennsylvania/Third Circuit Court of Appeals,
- Pennsylvania Post Conviction Relief Act (PCRA) petition, or
- Writ of Habeas Corpus appeal in the Federal District Court
Though it is best that we discuss the details of your son’s case further, from the information you gave in your question, your son may be able to file a PCRA petition based on a claim called ineffective assistance of counsel if the case was a state prosecution.
In a nutshell, ineffective assistance of counsel occurs when a defense attorney’s performance falls below an objective standard of reasonableness when representing their client.
Related: PA Post Conviction Relief Act Petition – How to Prove Ineffective Assistance of Counsel Claims
There are many different ways a criminal defense lawyer can be ineffective. The fact that your son’s lawyer was inexperienced is not enough to prove that his lawyer was ineffective; however, failing to call a witness at trial may be one of the ways.
The lawyer’s failure to call a witness in and of itself also does not prove that the defense counsel was ineffective. We must meet a three-prong test in order to prove that your son’s lawyer was ineffective: arguable merit, counsel’s act or omission was unreasonable, and your son was prejudiced.
In order to satisfy the first prong that the claim has arguable merit, your son must show the following:
- the witness was available;
- his lawyer knew about the witness or should have known about the witness;
- the witness would have testified on your son’s behalf.
The next prong your son needs to establish is that his lawyer’s action was not reasonable. If your son was never told by his lawyer that there was a witness who could have proved he was not at the scene of the crime, i.e., an alibi defense, his lawyer’s action may be considered unreasonable. Further, it can be argued that any competent lawyer would have called the witness to the stand. The witness was available to testify and could have proved that your son was not at the crime scene.
The last prong that your son must prove is that he was prejudiced by his lawyer’s action. Your son may have been prejudiced by the absence of the witness’s testimony that could have proved he was innocent. If the witness was available to testify, the outcome of your son’s trial could have been different and he may not have been convicted of attempted murder.
Please give me a call to discuss your son’s case further. We offer FREE consultations and have experience handling PCRA petitions and appeals. (215) 515-0042