Com. v. Ferguson

• Decision Date: 25 August 1988
• Citation: 546 A.2d 1249,377 Pa.Super. 246
• Parties: COMMONWEALTH of Pennsylvania v. Elbert FERGUSON, Appellant.
• Court: Pennsylvania Superior Court

Page 1249

546 A.2d 1249

377 Pa.Super. 246

COMMONWEALTH of Pennsylvania v. Elbert FERGUSON, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 3, 1987.

Filed Aug. 25, 1988.

Lenora M. Smith, Philadelphia, for appellant.

Theodore E. Hinckley, Asst. Dist. Atty., Chambersburg, for Com., appellee.

Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.

OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered after appellant was found guilty by jury of statutory rape, corruption of minors, and criminal conspiracy. Appellant claims that: (1) trial counsel was ineffective for failing to object to the Commonwealth's improper impeachment of a defense witness, and appellant should be granted a new trial because of the improper impeachment; and (2) appellant should be awarded a new trial because the trial court permitted the Commonwealth's expert witness to testify as to a matter within the exclusive province of the jury. For reasons discussed below, we vacate the judgment of sentence and remand for a new trial.

In July 1984, appellant moved in with Brenda Jones ¹ and her daughter, M.J. Within a few weeks, appellant began having sexual relations with the eleven-year-old girl. M.J. succumbed to appellant's advances on a regular basis, sometimes at Ms. Jones' request, for approximately two years. On December 16, 1985, appellant was arrested and charged with statutory rape, corruption of a minor, and conspiracy. Ms. Jones was also charged in the case; however, Ms. Jones subsequently chose to enter an A.R.D. program. After trial by jury, appellant was found guilty on all charges and sentenced to a total of three to twenty-five years' imprisonment.

Appellant first alleges that he was denied effective assistance of counsel when trial counsel failed to object to the Commonwealth's improper impeachment of Ms. Jones by questioning her as to her placement in A.R.D. When assessing ineffective assistance of counsel claims, we must first determine if the underlying claim is of arguable merit; and if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986); Commonwealth v. Carroll, 355 Pa.Super. 569, 513 A.2d 1069 (1986). In addition to the foregoing, appellant has the burden of proving that he was prejudiced by counsel's conduct such that the trial result would likely have been different but for the error. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Appellant claims that his trial counsel was ineffective for failing to object to the following cross-examination of Ms. Jones by the Commonwealth:

Q. Mrs. Ferguson, you were formally [sic] Brenda Jones, were you not?

A. Yes, sir.

Q. And as Brenda Jones, you were charged with your alleged complicity in these sexual crimes, were you not?

A. Yes, sir.

Q. And under that program you were given probation for two years for your charges that you were charged, with the sexual offenses involving [M.J.], were you not?

A. Yes, sir.

Q. And you were given a cost to pay, were you not?

A. Yes, sir.

Q. And you were ordered that you could not see your daughter except under supervision of Children and Youth Services limited momentary type visits for two years, were you not?

A. Yes, sir.

Q. And you expect us to believe that you accepted all that when nothing happened?

A. It's the truth. Nothing happened.

Q. Do you love your daughter, Mrs. Jones?

A. Yes, I do.

Q. But yet you went into court and accepted a probation whereby you would not see her except for momentary visits with Children and Youth Society for two years and nothing happened?

A. That's correct.

Trial transcript at 206-207. Appellant also highlights counsel's failure to object to the Commonwealth's mention during closing that Ms. Jones "just gave up all rights to this child and went on probation for two years and agreed to pay a fine...." Trial transcript at 340.

In compliance with the standard delineated supra, we must first determine if the underlying claim has arguable merit. Our inquiry focuses, then, on whether the Commonwealth's cross-examination as to placement in A.R.D. was a proper subject for impeachment. We must conclude that it was not. ²

It is well settled that the veracity of a witness may not be impeached by prior criminal conduct which has not led to a conviction. Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977); Commonwealth v. Fuller, 336 Pa.Super. 507, 485 A.2d 1197 (1984). We have determined that a defendant's admission into an A.R.D. program does not constitute a conviction for purposes of impeachment. Commonwealth v. Knepp, 307 Pa.Super 535, 453 A.2d 1016 (1982); Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1982).

In Krall, a case factually analogous to the one at bar, ³ we held that the trial court erred in permitting questions by the prosecution pertaining to a defense witness's admission into an A.R.D. program and remanded the case for a new trial. We declared that, in this circumstance, the burden was on the Commonwealth to prove harmless error beyond a reasonable doubt. Id. at 6, 434 A.2d at 101. We further opined therein:

If the evidence is substantial and a witness's testimony, even if believed did not exonerate the defendant, an error in inquiring about prior criminal activity may be harmless. See United States v. Trowery, 471 F.Supp. 23 (W.D.Pa.1978). In this case, the principal evidence concerning appellant's guilt was from [one witness], and apart from his testimony it was not overwhelming.

Krall, supra, at 5, 434 A.2d at 101.

Our Supreme Court has mandated that in deciding whether an error is harmless because there is properly admitted overwhelming evidence of guilt, the untainted evidence relied upon must be uncontradicted. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) citing Schneble v. Florida, 405 U.S. 427, 431, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972). We are required, therefore, to determine if the evidence is uncontradicted prior to finding harmless error on the basis of overwhelming evidence. Story, supra, 476 Pa. at 415, 383 A.2d at 167.

We do not believe that the Commonwealth has met its burden of establishing harmless error beyond a reasonable doubt. Examination of the record reveals that the defense presented several witnesses whose testimony contradicted the evidence presented by the Commonwealth. Further, we note that the Commonwealth established its case primarily through the testimony of one witness, the victim. We are compelled to decide that the error was not harmless and, therefore, that appellant's underlying claim has arguable merit. ⁴

Even though appellant's claim is of arguable merit, if trial counsel's failure to object had some reasonable basis designed to effectuate his client's interests, counsel's assistance is deemed constitutionally effective. Christy, supra, citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-353 (1967). When a claim of ineffective assistance has arguable merit and there has been no evidentiary hearing below to determine if there was reasonable basis for counsel's actions, then an appellate court must remand for an evidentiary hearing. Commonwealth v. Shablin, 362 Pa.Super. 289, 524 A.2d 511 (1987). Under normal circumstances, therefore, we would remand for an evidentiary hearing to give trial counsel the opportunity to explain his failure to object. 42 Pa.C.S.A. § 706; Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987). Because of our disposition of appellant's second issue, however, which results in the grant of a new trial, we will not remand for an evidentiary hearing. See Commonwealth v. Stockard, 346 Pa.Super. 263, 272, 499 A.2d 598, 603 (1985) ("As we have already vacated judgment of sentence and remanded for a new trial, it is doubly unnecessary for us to remand for an evidentiary hearing").

Appellant urges that the trial court committed reversible error by allowing the Commonwealth's expert witness, Dr. Robert E. Johns, to testify in essence that the victim was sexually abused by someone in the position of the appellant thereby permitting the witness to invade the province of the jury. Scrutiny of the record indicates that Dr. Johns was initially called to testify concerning the psychological dynamics of incest. Later, after the victim took the stand, the Commonwealth questioned Dr. Johns about an interview with the victim prior to trial and what conclusions the expert had reached regarding the case. The expert testified in pertinent part:

Mr. Antoun: Doctor, in your interview and your testimony and what you've seen and heard in court today, have you obtained enough evidence or information, enough information, on what you can base or form an opinion relative to any similarities or consistencies between this case and the classic situations you described in your earlier educational presentation?

Doctor: I did have an opinion on that matter.

* * *

* * *

Mr. Antoun: Could you tell us if there are any consistencies relative to the opportunity phase?

Doctor: Yes, I do believe in my clinical interview and observing the witness's statements that there were consistencies with the opportunity phase in that she described, in my opinion, how there was access and opportunity towards her being sexual[ly] abused in a variety of circumstances.

Mr. Antoun: Now, you indicated that part of that phase had to do with an adult with some power or control. Did you have any consistency there?

Doctor: Yes, she described experiencing allegations of sexual abuse in which she was under the control of significant adults in her life.

Trial transcript at 173-175.

In Commonwealth v. Davis, --- Pa. ---, 541 A.2d 315 (1988), our Supreme Court recently clarified the standard to be applied when the admission of expert testimony in a child sexual abuse case is challenged. In Davis, a clinical...