Com. v. Thek

• Decision Date: 14 July 1988
• Citation: 376 Pa.Super. 390,546 A.2d 83
• Parties: COMMONWEALTH of Pennsylvania v. Fred THEK, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 83

546 A.2d 83

376 Pa.Super. 390

COMMONWEALTH of Pennsylvania v. Fred THEK, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 10, 1987.

Filed July 14, 1988.

[376 Pa.Super. 392] Marshall E. Anders, Stroudsburg, for appellant.

Michael E. Weinstein, Dist. Atty., Milford, for Com., appellee.

Before WIEAND, KELLY and HESTER, JJ.

KELLY, Judge:

Appellant, Fred Thek, Jr., appeals from judgment of sentence imposed following his conviction of statutory rape, rape, involuntary deviate sexual intercourse, indecent assault, incest, corruption of minors, and Appellant contends on appeal that: (1) trial counsel rendered ineffective assistance; (2) the trial court erred as a matter of law in its instruction to the jury based upon the jury's question concerning the forcible compulsion element of the charge of rape; ¹ (3) the charges against the appellant should have been dismissed since he was not brought to trial within the period mandated by Rule 1100; ² (4) counts I, XI, XV, XVI and XVII of the information filed against the appellant should have been dismissed; (5) the trial court erred as a matter of law in improperly restricting the cross-examination of the alleged victim thereby denying the appellant his right to confront witnesses against him; ³ and (6) the judgment of guilty of the charge of terroristic threats should have been arrested and the appellant should be discharged thereon as the jury's verdict in this regard was against the weight of the evidence. After a thorough review of the record and the applicable authority, we find appellant's first, fourth and sixth issues have merit. Accordingly, we vacate the judgment of sentence and remand for a new trial in accordance with this opinion.

terroristic threats. We reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

On November 13, 1985, the appellant was arrested and charged with the crimes of statutory rape, rape, involuntary deviate sexual intercourse, indecent assault, incest, corruption of minors, and terroristic threats. The charges arose from appellant's sexual abuse of his minor daughter.

The criminal information alleged that: the statutory rape occurred during the summer of 1980 through 1981 (count I); the incest occurred during the summer of 1980 through 1981 (count XI) and during the period from the summer of 1980 through November 5, 1985 (count XVII); and the corruption of minors charge was based upon actions which occurred from the summer of 1980 through November 5, 1985 (count XV). The information contained no date or time period when the terroristic threats occurred (count XVI). The remaining counts relate to acts which occurred on October 16, October 22, and November 5, 1985 (counts II-X, XII, XIII and XIV).

Defense counsel filed numerous pre-trial motions to dismiss, which were denied. The trial was originally scheduled for the May Term, but was continued to the July Term upon the motion of the Commonwealth due to the victim's advanced pregnancy.

Trial commenced on July 8, 1986. On July 10, 1986, the jury found the appellant guilty on all counts. Thereafter, trial counsel filed timely post-verdict motions. On On February 23, 1987, an evidentiary hearing was held regarding alleged ineffective assistance of trial counsel. Five witnesses were called, including an attorney qualified as an expert in criminal law. By opinion and order dated May 8, 1987, the trial court denied appellant's post-verdict motions. On May 28, 1987, appellant was sentenced to an aggregate term of imprisonment of ten to twenty-three years. This timely appeal followed.

October 8, 1986, current counsel filed an entry of appearance and requested leave to file supplemental post-verdict motions nunc pro tunc which was granted.

I.

Appellant's first contention is that he was rendered ineffective assistance of counsel and therefore he is entitled to a new trial. He claims counsel was ineffective for the following reasons: (1) introducing the report of the Commonwealth's expert and placing before the jury the Commonwealth's expert's opinion that the victim was credible; (2) eliciting from the victim on cross-examination testimony relating to alleged sexual abuse in Arizona in 1979; (3) failing to call witnesses to impeach and rebut statements made by the victim; (4) failing to call proper character witnesses; (5) failing to produce those witnesses who could testify concerning previous false accusations of rape made by the victim; (6) failing to lay proper foundation for the introduction of the victim's school and medical records; and (7) failing to object to the introduction of the picture of a normal male scrotum area, during the rebuttal testimony of Dr. Umkey. After a thorough review of the record and applicable case law, we find appellant's first claim of ineffectiveness has merit. Accordingly, we vacate judgment of sentence and remand for a new trial. In light of our disposition on appellant's first claim of ineffectiveness, we need not address appellant's remaining ineffectiveness contentions.

The burden of establishing ineffective assistance of counsel rests upon the appellant. Additionally, the law presumes that counsel is effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). "In this Commonwealth we have long used, to gauge the 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. Petras, supra, 534 A.2d at 484 citing Commonwealth v. Saxton, 516 Pa. 196, 201, 532 A.2d 352, 354 (1987) (citing cases). In Commonwealth ex rel. Washington v. Maroney, supra, the process of measuring the ineffectiveness 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. (Emphasis in original). 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). See also Commonwealth v. Petras, supra, 534 A.2d at 485.

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; ⁴ 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. Petras, supra, 534 A.2d at 485; see also Commonwealth v. Pierce, 515 Pa. 153, 159-60, 527 A.2d 973, 975-76 (1987).

With these principles in mind, we now consider appellant's claim. Appellant maintains that trial counsel rendered him ineffective assistance by introducing into evidence the report of the Commonwealth's expert. Appellant contends that by introducing this report counsel placed before the jury the expert's opinion of the credibility of the victim. Therefore, appellant argues, the report was inadmissible as a matter of law and counsel's use of it constituted ineffective assistance of counsel. We agree.

In Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987), we addressed this particular issue and summarized the admissibility of such testimony as follows:

In Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985), this Court held that expert testimony regarding the general behavioral and psychological characteristics of child sexual abuse victims was admissible in a case involving child sexual abuse. In Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), our Supreme Court held that expert testimony as to the veracity of a child sexual abuse victim impermissibly encroached upon the province of the jury and that the trial court abused its discretion by admitting such evidence. Upon review of the majority and concurring opinions in Commonwealth v. Seese, supra, we find nothing to suggest that our holding in Commonwealth v. Baldwin, supra, has been disturbed. We note that there is a fundamental distinction between expert testimony which supports the credibility of a witness inferentially by establishing that a witness' testimony is consistent with the acts and responses evidenced in known child abuse cases, and expert testimony which presumes to pass directly upon the veracity of a particular witness. We read Commonwealth v. Seese, supra, to permit the former and prohibit the latter. Cf. Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987) (expert opinion based upon the totality of conflicting evidence usurped jury's function).

534 A.2d at 108-09 n. 1.

In Commonwealth v. Davis, 359 Pa.Super. 626, 515 A.2d 617 (1986), a panel of this Court construed Baldwin to permit an expert, who never examined the victim, to testify that children who report sexual abuse generally...