Com. v. Petras

• Decision Date: 30 November 1987
• Docket Number: No. 979,979
• Citation: 368 Pa.Super. 372,534 A.2d 483
• Parties: COMMONWEALTH of Pennsylvania, v. Richard PETRAS, Appellant. Phila. 1986.
• Court: Pennsylvania Superior Court

Page 483

534 A.2d 483

368 Pa.Super. 372

COMMONWEALTH of Pennsylvania, v. Richard PETRAS, Appellant.

No. 979 Phila. 1986.

Superior Court of Pennsylvania.

Argued May 28, 1987.

Filed Nov. 30, 1987.

[368 Pa.Super. 374] James Bacon, Philadelphia, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before ROWLEY, KELLY and WATKINS, JJ.

KELLY, Judge:

Following a bench trial, appellant, Richard Petras, was convicted of involuntary deviate sexual intercourse involving oral sodomy on a thirteen year old male. On March 18, 1986, appellant was sentenced to a term of three to six years imprisonment. Appellant contends in this appeal that trial counsel rendered ineffective assistance thereby denying him a fair trial. We remand for an evidentiary hearing with respect to one of appellant's allegations of ineffectiveness.

The facts and procedural history of this case are accurately set forth in the opinion of the trial court and will be repeated herein only as necessary for the disposition of the contentions raised by appellant. Appellant contends that, individually and collectively, alleged errors by trial counsel denied him a fair trial. Specifically, appellant contends that his attorney was ineffective in: 1) failing to interview and/or call Edwin C. as a defense witness; 2) failing to impeach the victim with prior inconsistent statements; 3) failing to properly cross-examine the police officers; 4) failing to demand a bill of particulars or to request a continuance; and 5) failing to object to allegedly improper and inflammatory information presented to the sentencing court in the presentence report. We find no merit in appellant's second, third, fourth, and fifth contentions. With regard to appellant's first contention, we find we must remand for an evidentiary hearing. We shall discuss each allegation of ineffectiveness seriatim.

The burden of establishing ineffective assistance of counsel rests upon the appellant as counsel's stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). "In this Commonwealth we have long used, to gauge ineffectiveness of counsel's stewardship, the test set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967)." See Commonwealth v. Saxton, --- Pa. ---, ---, 532 A.2d 352, 354 (1987) (citing cases). In Commonwealth ex rel. Washington v. Maroney, supra, the process of measuring the effectiveness of counsel was described by our Supreme Court as follows:

Our task ... encompasses both an independent review of the record,.... and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives.... We cannot emphasize strongly enough, however, that our inquiry ceases and counsel'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.

235 A.2d at 352-53. Our Supreme Court also made clear that, for relief to be granted, the accused must demonstrate that counsel's ineffectiveness worked to his prejudice:

Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.

235 A.2d at 353 n. 8. (Emphasis added).

Thus, in order to establish a claim of ineffectiveness, appellant must establish that: by act or omission counsel was arguably ineffective; counsel's act or omission could not have had a reasonable basis designed to effectuate appellant's interests; ^* and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Pierce 515 Pa. 153, ---, 527 A.2d 973, 975-76 (1987); see also Commonwealth v. Johnson, --- Pa. ---, ---, 532 A.2d 796, 799 (1987). ("The standard of review is that there must be a reasonable probability that but for counsel's unprofessional errors, the result of the trial would have been different.").

When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. See Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985). However, remand for an evidentiary hearing is not a discovery tool wherein counsel may conduct investigation and interrogation to search for support for vague or boilerplate allegations of ineffectiveness. Rather, appellant "must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective," before remand for an evidentiary hearing will be granted. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Moreover, if it is clear that: the allegation lacks arguable merit; an objectively reasonable basis designed to effectuate appellant's interests existed for counsel's actions or inactions; or appellant was not prejudiced by the alleged error by counsel, then an evidentiary hearing is unnecessary. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

Appellant first contends that trial counsel was ineffective in failing to interview and/or present Edwin C. as a defense witness. To obtain relief on this claim, appellant is required to establish that: 1) the witness existed; 2) the witness was available; 3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; 4) the witness was prepared to cooperate and testify for appellant at trial; and 5) the absence of the testimony prejudiced appellant so as to deny him a fair trial. See Commonwealth v. Griffin, 357 Pa.Super. 308, 319, 515 A.2d 1382, 1387-88 (1986); Commonwealth v. Ross, 273 Pa.Super. 67, 71, 416 A.2d 1092, 1094 (1979). Appellant's proffer met each of these requirements.

At a hearing on appellant's post-verdict motions, appellant's new counsel proffered evidence that Edwin C. could and would have testified at trial that he was in the van with appellant and the alleged victim the one and only time that appellant and the victim were alleged to have been in appellant's van together, and that no illegal sexual activity occurred on that occasion. (N.T. 3/18/86 at 9-10). Counsel indicated for the record that Edwin C. was present at the hearing. (N.T. 3/18/86 at 11). Appellant's motion for a new trial was denied on It is important to note the alleged victim testified at trial that: Edwin C. and his cousin Tito introduced him to appellant (N.T. 9/18/85 at 18); he believed that Edwin C. was in the van at the time of the alleged offense (N.T. 9/18/85 at 22, 26); and he was only in appellant's van one time (N.T. 9/18/85 at 25, 29). Prior counsel had notice of Edwin C.'s potential importance as a witness, as the alleged victim had indicated during the preliminary hearing that Edwin C. had introduced him to appellant (N.T. 3/25/85 at 9), and a friend was in the van with him at the time of the alleged offense (N.T. 3/25/85 at 15).

the basis of the proffer without entertaining testimony from Edwin C. (N.T. 3/18/86 at 18).

We find that appellant's proffer presents a claim of arguable merit. Further, we find that no objectively reasonable basis designed to effectuate appellant's interest appears on the record for failing to interview or present Edwin C. as a witness; and that Edwin C.'s proffered testimony could very likely have affected the outcome of the case as it directly contradicts the victim's testimony. Consequently, we will remand for an evidentiary hearing on this issue. Commonwealth v. Spotts, supra. Although the Commonwealth argues that counsel declined to call Edwin C. as a witness as a matter of trial tactics, we are not willing to accept this supposition on the present meager record. The Commonwealth may, of course, pursue this theory or any other theory to rebut appellant's proferred evidence of counsel's apparent ineffectiveness during proceedings on remand.

Appellant's second and third contentions regard alleged deficiencies in trial counsel's cross-examination of the victim and the police officers who testified for the prosecution. The gist of appellant's argument is that trial counsel failed to make effective use of cross-examination to establish that the prosecution had the victim change his story regarding the date of the incident (from March 1984 to the summer of 1984) when the Commonwealth belatedly realized that appellant did not own the vehicle in which the incident was alleged to have taken place until the summer of 1984. (Appellant's Brief at 36-40). We find no merit to these claims of ineffectiveness.

At trial, the victim testified that he was not certain what month the incident took place. (N.T. 3/25/85 at 24). Upon questioning by the trial court, the victim indicated that he thought it was summer. (N.T. 3/25/85 at 26). The prosecutor then asked whether school was still in session; the victim responded that school was finished. (N.T. 3/25/85 at 27). Prior to cross-examination, appellant's trial counsel moved to strike the direct testimony based upon its variance from the information filed against appellant which indicated the incident occurred in March of 1984. (N.T....