Commonwealth v. Fontana

I dissent. Like the unanimous Superior Court, I fail to see on this record how appellant in any respect can obtain a new trial on the ground that his privately-retained counsel did not testify at trial. It is for the defendant and counsel to decide whether counsel should refrain from testifying. See Commonwealth v. Gatewood, 221 Pa.Super. 399, 293 A.2d 80 (1972). Here, the record is clear that, despite any ethical considerations, retained counsel knowingly chose not to testify on appellant’s behalf. And appellant in no way even suggests either that he was unaware of his right to call retained…