Com. v. Davis

• Decision Date: 11 January 1995
• Citation: 438 Pa.Super. 425,652 A.2d 885
• Parties: COMMONWEALTH of Pennsylvania v. David E. DAVIS, Appellant.
• Court: Pennsylvania Superior Court

Page 885

652 A.2d 885

438 Pa.Super. 425

COMMONWEALTH of Pennsylvania v. David E. DAVIS, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 21, 1994.

Filed Jan. 11, 1995.

Shelley Stark, Public Defender, Pittsburgh, for appellant.

Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before McEWEN, TAMILIA and BROSKY, JJ.

BROSKY, Judge:

This is an appeal from the judgment of sentence entered following appellant's conviction for attempted rape. ¹ Appellant presents two issues for review: (1) whether trial counsel was ineffective in failing to impeach the credibility of the victim with evidence of her pending criminal charges; and (2) whether trial counsel was ineffective in failing to preserve this issue for appellate review. For the reasons set forth below, we vacate the judgment of sentence and remand for further proceedings consistent with the following discussion.

Before addressing the merits of appellant's claims, we will briefly recount the relevant facts. During the early afternoon hours of March 2, 1993, appellant, David Davis, encountered the female victim. Appellant and the victim went to appellant's residence where they engaged in various acts of ordinary and deviate sexual intercourse. ² The victim departed from appellant's residence and immediately apprised the police of the incident. As a result, appellant was arrested and charged with various offenses.

A jury trial was held from November 17 through November 22, 1993 following which appellant was acquitted of all offenses except for the act of attempted rape. Post-trial motions were filed by trial counsel. In addition, appellant was granted leave to file pro se supplemental post-trial motions. All of appellant's post-trial motions were denied and he was sentenced to a term of five (5) to ten (10) years imprisonment. Appellant then initiated this timely appeal therefrom.

Both of appellant's allegations of error implicate the ineffectiveness of trial counsel. In order for appellant to prevail on these issues he must show: (1) that the underlying claim is of arguable merit; (2) that the particular course of conduct of counsel did not have some reasonable basis designed to effectuate his interests; and (3) that counsel's ineffectiveness prejudiced him, i.e., that absent counsel's ineffectiveness, the result in his case would have been different. Commonwealth v. Howard, 538 Pa. 86, ----, ----, 645 A.2d 1300, 1304, 1305 (1994). To establish the element of prejudice, appellant must demonstrate that "counsel's ineffectiveness was of such magnitude that it could have reasonably had an adverse effect on the outcome of the proceedings." Id., --- Pa. at ----, 645 A.2d at 1307. However, trial counsel cannot be held ineffective for failing to take futile actions or to raise a meritless claim. Id., --- Pa. at ----, 645 A.2d at 1304. We shall evaluate appellant's allegations of ineffectiveness in accordance with these principles.

At the outset, we note that appellant has been represented throughout the trial, post-trial, sentencing and appellate proceedings by various members of the Allegheny County Public Defender's Office. Members of the public defender's office are considered members of the "same firm" for purposes of presenting a claim of ineffectiveness of counsel. See Commonwealth v. Via, 455 Pa. 373, 377, 316 A.2d 895, 898 (1974), quoted in Commonwealth v. Westbrook, 484 Pa. 534, 539, 400 A.2d 160, 162 (1979); Commonwealth v. Green, 379 Pa.Super. 602, 605-606, 550 A.2d 1011, 1012 (1988). Consequently, we are presented with a situation in which appellant's counsel is in essence challenging his own ineffectiveness. In such circumstances, our Supreme Court has indicated that the case should be remanded for the appointment of new counsel except: (1) where it is clear from the record that counsel was ineffective; or (2) where it is clear from the record that the ineffectiveness claim is meritless. Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986). We must accordingly examine appellant's claims to ascertain whether a remand is necessary.

Appellant's allegations require us to ascertain whether trial counsel was ineffective in failing to cross-examine the victim regarding the possibility of any lenient treatment she might receive with respect to her then outstanding criminal charges. However, the existing record does not enable us to definitively determine whether the victim and the individual against whom the criminal charges were pending are indeed the same person. If the identity of the accused individual and the victim are not the same, then appellant's claims would appear to be meritless and he would not be entitled to any relief. Conversely, relief may be warranted in the event it is established that the victim did have charges pending against her at the time of appellant's trial. We must therefore analyze appellant's claim under the latter scenario, i.e., we will assume, for purposes of this discussion only, that charges were pending against the victim.

Our Supreme Court has held "that a witness may be cross-examined as to any matter tending to show the interest or bias of that witness." Commonwealth v. Nolen, 535 Pa. 77, 83, 634 A.2d 192, 195 (1993).

[W]henever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it. The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury's determination of the case.

Commonwealth v. Hill, 523 Pa. 270, 273, 566 A.2d 252, 253 (1989) (citation omitted). Where the determination of a defendant's guilt or innocence is dependent upon the credibility of a prosecution witness, it is particularly important that the defendant be accorded an adequate opportunity to demonstrate through cross-examination that the witness is biased. Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992).

As applied here, it is undisputed that trial counsel did not attempt to demonstrate any potential bias by cross-examining the victim with respect to her pending criminal charges. Appellant's claim thus appears to have arguable merit unless the exclusion of this evidence was harmless error. See, e.g., Commonwealth v. Nolen, 535 Pa. at 84-85 n. 4, 634 A.2d at 196 n. 4 (rejecting rule that a trial court's refusal to permit cross-examination as to the witness' possible bias is always reversible error; after reviewing the record, the court determined that the error was harmless).

[A]n error will be deemed harmless where the appellate court is convinced beyond a reasonable doubt that the error could not have contributed to the verdict. Guidelines for determining whether an error is harmless include: (1) whether the error was prejudicial to the defendant or if prejudicial, whether the prejudice was de minimis; (2) whether the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) whether the evidence of guilt was so overwhelming as established by properly admitted and uncontradicted evidence that the prejudicial effect of the error was so insignificant by comparison to the verdict.

Commonwealth v. Nolen, 535 Pa. at 85, 634 A.2d at 196 (citation omitted).

Consideration of these factors persuades us that the error was not harmless in this instance. The Commonwealth suggests that trial counsel's omission was harmless because the offenses which were pending against the victim were committed after the incident involving appellant, thereby weakening the inference of possible bias against appellant. Notwithstanding the Commonwealth's argument, the Supreme Court has recognized that:

the victim, as accuser, must be subject to the utmost scrutiny if his [or her] accusations are to fairly form the basis of the criminal prosecution at hand. The strength or weakness derived from an attempt to show that the victim has some ulterior motive for continuing his [or her] role as an accuser due to subsequent acts, bringing him into the sphere of the influence by the prosecutor, must rightly be determined by the jury, which, after hearing all the evidence in the matter before them, will be most able to ferret out the presence or absence of improper motive on the part of the victim.

Commonwealth v. Borders, 522 Pa. 161, 165, 560 A.2d 758, 760 (1989). See also Commonwealth v. Hill, 523 Pa. at 274, 566 A.2d at 253 (rejecting Commonwealth's argument that victim's testimony cannot be affected by delayed sentencing in the victim's subsequent misdeed; the court further reiterated that the weight to be accorded the evidence of bias is a matter best left to the jury's determination and is not to be decided through the speculation of either the prosecutor or the appellate courts).

Moreover, the cases referenced by the Commonwealth, which have found the lack of cross-examination to be harmless, are distinguishable in that they involved situations in which the witnesses' testimony was corroborated by other individuals or was not of crucial importance to the Commonwealth's case. See,...