Com. v. Hancharik

• Decision Date: 01 November 1993
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Andrew W. HANCHARIK, Appellant.
• Court: Pennsylvania Supreme Court

Page 1074

633 A.2d 1074

534 Pa. 435

COMMONWEALTH of Pennsylvania, Appellee, v. Andrew W. HANCHARIK, Appellant.

Supreme Court of Pennsylvania.

Submitted March 10, 1992.

Decided Nov. 1, 1993.

Philip B. Friedman, Ambrose & Friedman, Erie, for appellant.

Jay Paul Kahle, Dist. Atty., Robert L. Saunders, Asst. Dist. Atty., Smethport, for appellee.

Before NIX, C.J., and FLAHERTY, MCDERMOTT, ZAPPALA, PAPADAKOS, and CAPPY, JJ.

OPINION

ZAPPALA, Justice.

Following trial by jury, the Appellant, Andrew W. Hancharik, was found guilty of involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. He was sentenced to a six to fifteen year term of imprisonment. Superior Court affirmed the judgment of sentence, 388 Pa.Super. 337, 565 A.2d 782 (1989). The question in this appeal is whether certain testimony of the Appellant's wife was subject to the rule of 42 Pa.C.S. § 5914 governing confidential communications between spouses, and whether trial counsel rendered ineffective assistance by failing to object to its introduction.

The Commonwealth charged that the Appellant committed an act of indecent assault on a ten year old girl in November of 1985, and an act of involuntary deviate sexual intercourse on the same girl in December of 1985. The Appellant had worked with the girl's grandfather. The families had been acquainted for several years, and had spent time together over the preceding months. From about September of 1985, with her mother's permission, the girl regularly stayed at the Appellant's house on weekends, on holidays, and on other occasions.

At trial, the Commonwealth presented the testimony of Marsha Hancharik, the Appellant's wife. Among other things, Mrs. Hancharik testified to several matters that the Appellant claims should have been objected to by trial counsel and excluded:

a) that her husband wanted to adopt an older girl;

b) that her husband told her that "he loved [the girl] very much and needed a daughter to complete his family" and "he could relax when [she] was around;" and

c) that her sexual relationship with her husband was not good and that they were experiencing marital problems.

The Appellant relies on 42 Pa.C.S. § 5914, which states:

Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.

The common pleas court ruled that the matters were not privileged, "and, even if they were, she was competent to testify about them under the exception provided for in the case of criminal proceedings brought against a spouse involving children in their care or custody. 42 Pa.C.S. § 5913." Opinion at 2. The majority opinion of the en banc Superior Court employed the same analysis of section 5913, concluding that it was "an express and complete exception to the spousal testimonial privilege on the facts of this case." 388 Pa.Super. at 346, 565 A.2d at 786.

At the time of trial, Section 5913 stated:

Except as otherwise provided in this subchapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other, except that in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them, each shall be a competent witness against the other, and except also that either of them shall be competent merely to prove the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other. ¹

The Appellant argues that the "bodily injury or violence" exception to the rule that spouses were incompetent to testify against each other, found in this section, did not affect the rule stated in section 5914 that spouses are incompetent to testify about confidential communications. Superior Court rejected this contention. This was error.

Unquestionably, sections 5913 and 5914 involve two distinct rules. ² The first was a rule disqualifying a husband or wife from giving any testimony adverse to the spouse. This broad rule was not without exceptions. Within Section 5913 was provided an exception for charges of threatening, attempting, or committing an act of bodily injury or violence on the spouse or children in their care, an exception for charges of desertion and maintenance, and an exception for charges of bigamy. The statement of the rule of incompetency was also preceded by language indicating that exceptions may be found elsewhere in the subchapter.

The second rule, found in section 5914, is more limited. It provides that spouses are incompetent to testify to confidential communications. The only exception stated within the section is that this protection may be "waived upon the trial." Again, however, there is prefatory language to the effect that the rule is as stated, "except as otherwise provided in this subchapter."

Superior Court construed this language to mean that the "bodily injury and violence" exception stated in section 5913 applied as an exception to the rule stated in section 5914. The court failed to explain, however, how this interpretation could stand against the criticism that it renders section 5914 entirely superfluous. If a husband or wife is incompetent to testify against the spouse at all (section 5913), there is no need to state separately that a husband or wife is incompetent to testify to confidential communications (section 5914). Likewise, if the exception applies to both rules, then there is no circumstance where the confidential communications rule of section 5914 is applicable that the competency provision of section 5913 is not. If there is another reading of the statutes that avoids this difficulty and gives effect to all the provisions, it is to be preferred. See 1 Pa.C.S. § 1922(2) (presumption that legislature intends entire statute to be effective).

Such an interpretation is not difficult to discern. Subchapter A of Chapter 59 of the Judicial Code, in which these sections appear, contains another section dealing with spouses as witnesses in criminal proceedings, i.e., section 5915. That section provides that:

In any criminal proceeding brought against the husband or wife, if the defendant makes defense at the trial upon any ground which attacks the character or conduct of his or her spouse, the spouse attacked shall be a competent witness in rebuttal for the Commonwealth.

If this section is read as the "except[ion] ... otherwise provided in [the] subchapter," all the language of each of the sections can be given effect. Thus, with respect to spouses as witnesses, the general rule is incompetency. This rule does not apply, that is, one spouse is a competent witness against the other, where it is charged that the other threatened, attempted, or committed an act of violence or personal injury to the spouse sought to be called as a witness or to children in the care of either of them. Even if the spouse is generally competent to testify under the "bodily injury or violence" exception, however, he or she is not competent to testify to confidential communications. The sole exception to this rule is that a husband or wife is competent to testify to rebut a defense based upon grounds that attack his or her character or conduct. In such case, the testimony could encompass confidential communications.

Having determined that section 5914 was not rendered inapplicable by the fact that this case involved bodily injury or violence to a minor child in the defendant's care, to assess the claim of ineffective assistance we must determine whether Mrs. Hancharik testified to confidential communications, and if so, whether counsel could have had a reasonable basis for not objecting, thus "waiving the privilege upon the trial."

Of the statements identified by present counsel as being objectionable, it is clear that the first does not qualify as a confidential communication. The record is replete with indications that the Appellant told many people other than his wife that he wished to adopt an "older" girl. The Hanchariks had even contacted a county agency, applied to be foster parents, and gone through foster care home study towards this end. Undoubtedly, in the course of this process, the Appellant expressed his desire to adopt an older girl in the presence of, indeed directly to, a party other than his wife. Even if there was an instance when the Appellant indicated his desire to adopt an older girl to his wife in a confidential marital communication, his wife clearly could testify regarding any of the other instances where he gave the same indication in a non-confidential setting.

The second category of testimony complained of just as clearly does come within the scope of section 5914 as confidential communications. Communications between husbands and wives are presumed to be confidential, and the party opposing application of the rule disqualifying such testimony bears the burden of overcoming this presumption. See Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934). We find nothing to overcome this presumption with respect to the Appellant's statements to his wife that he loved the girl and that he was able to relax in her presence.

Whether the third category of testimony, Mrs. Hancharik's observations that she and her husband had marital problems and a poor sexual relationship, comes within the scope of section 5914 is a more difficult question. ³ It is, however, a question we need not resolve in order to decide this appeal, for even if it is assumed that the testimony is covered by section 5914, ...