Com. v. McNeil

• Decision Date: 08 February 1985
• Citation: 487 A.2d 802,506 Pa. 607
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Thad McNEIL, Appellee.
• Court: Pennsylvania Supreme Court

Page 802

487 A.2d 802

506 Pa. 607

COMMONWEALTH of Pennsylvania, Appellant, v. Thad McNEIL, Appellee.

Supreme Court of Pennsylvania.

Submitted Oct. 25, 1984.

Decided Feb. 8, 1985.

Eric B. Henson, Deputy Dist. Atty., Marianne Cox, Asst. Dist. Atty., Philadelphia, for appellant.

Burton A. Rose, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

LARSEN, ^* Justice.

On January 29, 1980, Thad McNeil, appellee, was convicted by a jury in the Court of Common Pleas of Philadelphia County of rape, assault, involuntary deviate sexual intercourse, unlawful restraint and indecent assault. The evidence introduced at trial discloses the following facts and circumstances underlying those convictions.

At approximately 12:30 A.M. on May 21, 1979, Mrs. Angeline Bennett, a nurse, was returning home from work and was waiting for a bus at 29th Street and Lehigh Avenue in Philadelphia. Appellee pulled up to the bus stop in his car, spoke to Mrs. Bennett and offered to drive her to her home. She accepted the offer but instead of taking her home, appellee pulled into a secluded parking lot nearby where he assaulted and raped Mrs. Bennett.

When she was finally released, the distraught victim stopped a Philadelphia police officer who had observed her enter appellee's car approximately one hour earlier. Her face and eye were swollen, her nurse's uniform was bloodied and she was in tears. Mrs. Bennett gave a description of her assailant and his vehicle to the police and gave them a piece of the car's ripped upholstery which she had taken and concealed.

Appellee was arrested on June 4, 1979 for the rape of another woman, Mrs. Sabrina Baker. The events alleged by Mrs. Baker bore a striking similarity to those of the instant case. Because of that similarity Mrs. Bennett was contacted by detectives and identified appellee as her attacker at a police lineup. A search of appellee's vehicle, pursuant to a warrant, disclosed torn upholstery and an octagon shaped earring that Mrs. Bennett told police may have been lost during the attack.

The defense was denial. Testifying in his own defense, appellee was asked by defense counsel "Prior to May 22, 1979 [the rape occurred on May 21, 1979], have you ever seen Angeline Bennett...." Appellee responded "No, sir". Defense counsel attacked the victim's credibility and her identification of appellee, focusing on a discrepancy between the victim's description of the color of appellee's car and its actual color. Counsel also suggested to the jury that Mrs. Bennett had taken a ride from a male acquaintance who was to have taken her home the evening of the rape and had consensual intercourse with him that had gotten out of hand, at which point she reported a rape. Counsel further argued to the jury that, having reported a rape, Mrs. Bennett felt pressure at the police lineup to identify someone as her attacker and that someone happened to be appellee. The jury rejected counsel's suggestion and convicted appellee of the charges as noted.

On July 8, 1980, a hearing was held before the trial court at which appellee's post trial motions were argued and denied. A sentencing hearing was then conducted. At this hearing, appellee informed the court that "I feel as though I was taken advantage of and that I didn't have a fair trial .... because ... my attorney, he stopped me from telling the truth, he stopped me from saying things that could have helped me." Notes of Testimony (N.T.), July 8, 1980 at 35-36, R. 546a. Appellee explained to the court that he had lied at his trial in denying that he knew Mrs. Bennett, that in fact he and Mrs. Bennett had been lovers but their relationship had soured because he "lied to her" and "played games" with her. Appellee further claimed at this hearing that Mrs. Bennett and Mrs. Sabrina Baker had conspired against him to separately accuse him of rape. Id. at 38-39, R. 548a-549a.

Mrs. Baker had filed charges against appellee, accusing him of raping her on April 29, 1979. ¹ Mrs. Baker testified, at a trial conducted subsequent to the instant trial proceedings, that appellee had forced her at knife-point into his car, driven to the parking lot near 29th Street and Lehigh Avenue and brutally and repeatedly raped her. Mrs. Baker's common law husband had kept the parking lot under surveillance since the incident and on June 4, 1979, spotted appellee there in his vehicle with another woman. Appellee's license number was reported to detectives which led to his arrest for the alleged rape of Mrs. Baker, and subsequently, for the rape of Mrs. Bennett. Appellee presented a successful consent defense in the Sabrina Baker case and the jury acquitted him on all charges. ²

At his sentencing hearing in the instant case, appellee claimed that defense counsel prevented him from telling the truth about his newfound "victims conspiracy/consent" defense and that he followed counsel's advice because he was "scared to death". N.T. July 8, 1980 at 46, R. 556a. Appellee further claimed that there were several female witnesses who could corroborate this defense. Id. at 37, R. 547a and 41, R. 551a. The court also heard hearsay testimony by appellee's mother and a minister to the effect that appellee had stated to them that he knew and dated Mrs. Bennett and that he had witnesses to prove it.

Defense counsel informed the court that appellee had chosen to testify and had chosen what to say after the two had evaluated and discussed the case. Nevertheless, despite initial skepticism as to appellee's newfound defense and his recanting testimony alleging his own perjury at trial, ³ the court took the matter under advisement, appointed new counsel, and scheduled a subsequent hearing to determine whether trial counsel was ineffective in failing to pursue the newfound defense and/or for failing to interview witnesses.

At a hearing convened on January 22, 1981, appellee produced only one witness, Mr. Russell Gore, who testified that he had twice seen appellee with a woman whom he later identified as Mrs. Bennett. Mr. Gore had been present at appellee's entire trial and had spoken with defense counsel; however, defense counsel never interviewed Mr. Gore. Appellee did not introduce, at this hearing, any of the female witnesses he previously mentioned as being able to corroborate his claims.

A third hearing was held on February 10, 1981 at which trial counsel testified. At this hearing, counsel appeared to be confused as to the defenses that were to have been presented in the Baker and Bennett cases. (Counsel had also represented appellee in two prior rape cases of a similar nature as well, resulting in acquittals. See note 2 supra.) He stated that he knew consent was to be a defense in one of the cases, and denial in the other, but he was not now sure which. However, a review of counsel's presentation in the instant trial proceedings discloses a coherent and consistent defense of denial. Counsel also conceded that he had not interviewed Gore at any time. Counsel reiterated, however, that he did not tell appellee how to testify. N.T. February 10, 1981 at 6, R. 591a. At this hearing, the Commonwealth attempted to discern the basis defense counsel had for pursuing the strategy actually chosen in the instant case and for not pursuing the "victims conspiracy/consent" defense, but the court sustained newly appointed counsel's objection to this inquiry.

Based upon the foregoing, the trial court granted appellee a new trial, holding that "trial counsel's failure to interview a potentially valuable witness, who could have aided in asserting a consent defense deprived the defendant, Thad McNeil, of his state and federally protected constitutional rights to effective assistance of counsel." Slip opinion at 16. On the Commonwealth's appeal, the Superior Court affirmed without opinion. 316 Pa.Super. 596, 463 A.2d 41 (1983). This Court granted the Commonwealth's petition for allowance of appeal and now reverse.

This Court recently reiterated the appellate standards for reviewing claims of ineffective assistance of counsel; in Commonwealth v. Anderson, 501 Pa. 275, 286, 461 A.2d 208, 213 (1983) we stated:

We remain guided by the standards first articulated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605-06, 235 A.2d 349, 352-53 (1967):

[C]ounsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests.

The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.

Moreover, counsel will not be deemed ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Arthur, 488 Pa. 262, 265, 412 A.2d 498 (1980). It is only when the claim which has been foregone is of arguable merit that further inquiry must be made into the basis for counsel's decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 696 (1977).

Additionally, because counsel's stewardship of the trial is presumptively effective, the burden of establishing counsel's ineffectiveness rests upon the defendant. Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233 (1981); Commonwealth ex rel. Washington v. Maroney, supra at 427 Pa. 608, 235 A.2d 349. With these standards to guide us, it is quite clear that the lower courts have erred in finding that appellee's trial counsel was ineffective.

To place our analysis of the ineffectiveness claim in perspective, we must examine the strategy that appellee asserts should have been pursued by his attorney. Following appellee's conviction in the instant case, but prior to sentencing,...