Com. v. Weinder

• Decision Date: 10 July 1990
• Citation: Com. v. Weinder, 577 A.2d 1364, 395 Pa.Super. 608 (Pa. Super. Ct. 1990)
• Parties: COMMONWEALTH of Pennsylvania v. James WEINDER, a/k/a James Winder, a/k/a Sidewinder, Appellant.
• Court: Pennsylvania Superior Court

Page 1364

577 A.2d 1364

395 Pa.Super. 608

COMMONWEALTH of Pennsylvania v. James WEINDER, a/k/a James Winder, a/k/a Sidewinder, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 16, 1990.

Filed July 10, 1990.

Robert B. MacIntyre, Harrisburg, for appellant.

Deborah S. Essis, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Before ROWLEY, POPOVICH and HUDOCK, JJ.

ROWLEY, Judge:

This is an appeal from an order denying appellant James Weinder's petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. ¹ As a result of incidents involving a ten-year-old female neighbor, appellant was convicted by a jury of two counts of rape and sentenced to two consecutive terms of imprisonment of five to ten years. A direct appeal was taken to this Court, which affirmed the judgment of sentence in an unpublished memorandum dated July 29, 1983. Appellant's petition for allowance of appeal was denied by the Pennsylvania Supreme Court on November 14, 1983. On January 4, 1989, appellant, who had been represented by trial and appellate counsel from the Dauphin County Public Defenders Office, filed a pro se PCRA petition, his first request for collateral relief. ² Present counsel, not a member of the Public Defenders Office, was appointed to represent appellant and to file a supplemental petition on his behalf; appellant's petition, as supplemented, was denied without a hearing in an order entered August 4, 1989; and this timely appeal of the order followed.

Appellant alleges three instances of trial counsel's ineffective assistance, all of which, he asserts, were compounded by appellate counsel's failure to challenge trial counsel's effectiveness on direct appeal. We conclude that one of the three claims would, without more, entitle appellant to relief in the form of a new trial. However, because we cannot determine from the record whether the Commonwealth has been prejudiced in its ability to re-try appellant, we remand the case to the trial court for a hearing on that issue.

The facts of the case, as revealed by the testimony at trial, are as follows: The victim testified that the first incident of rape occurred on the morning of December 31, 1980, when she went next door after breakfast to visit her friend Sherry, who lived in the same building as appellant. The victim testified that the rape occurred after she had spent an unspecified amount of time playing with Sherry. Appellant testified that on that day, he and a friend, Tommy Woodward, left the house early, well before lunch, spent the day drinking in various bars, and did not return home until just before midnight on New Year's Eve. His testimony was corroborated by Woodward, who testified that the two left the house sometime between 9:00 or 9:30 and 10:30 in the morning and returned home around midnight. Woodward asserted that appellant was not out of his presence for more than twenty minutes at a time and could not have gone home and returned to Woodward's presence in that amount of time.

The victim testified that the second incident occurred on the morning of January 7, 1981, after she had gone next door and helped Sherry and an older woman prepare breakfast. Appellant testified that on January 7, 1981, he left the house a few minutes before 8:00 a.m., went to District Justice Hardy's office to deal with two citations unrelated to the present case, and returned home around 10:00 a.m.

The evidence offered by the Commonwealth against appellant was considerable. The ten-year-old victim knew appellant as a next-door neighbor whose nickname was "Sidewinder," and her identification of him as her assailant was definite and unwavering. She offered a detailed recounting of the assaults, and the physician who examined her on January 10, 1981 indicated that her physical condition was consistent with having experienced sexual intercourse in the recent past. Although appellant insisted that he had never had sexual relations with the victim, he offered no explanation for her allegedly false accusation of him other than the vague suggestion that he had promised to give her a necklace but had not done so. In addition, appellant conceded that, as the arresting officer had testified, he had hidden in a closet in an attempt to avoid arrest. Concealment, as the trial court instructed the jury, may be some evidence of consciousness of guilt. See Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964).

In the first of his ineffectiveness claims, appellant contends that trial counsel failed to pursue exculpatory medical evidence which would have shown that he was not suffering from gonorrhea at the time the victim was assaulted. In the opinion of the physician who examined the victim several days after the second assault, the victim was suffering from a gonorrheal infection despite the fact that her test results were negative. The physician explained that "false negative" test results were not uncommon. He also testified that gonorrhea can be "self-curing" and that a male individual who was tested for gonorrhea five months after an infectious sexual contact would be unlikely to test positive. Appellant was tested for gonorrhea approximately six months after the incidents in question, and the results were negative. Appellant's contention is that those results were meaningless in light of the physician's explanation of the self-curing nature of the disease and that trial counsel was ineffective for failing to pursue evidence showing that appellant had not been infected at the time the incidents occurred.

Appellant's argument is persuasive in theory but deficient in fact. Although he asserts in the argument section of his brief that records from the Dauphin County Prison, where he was incarcerated on or about January 11, 1981, would have shown whether he was tested or treated for venereal disease at that time, he asserts in his statement of the case that he was not tested for venereal disease until six months after the victim was assaulted. He also avers that "[o]ther competent medical evidence, i.e. testimony of family physicians or clinic records would have been available to support the defense" (Brief for Appellant at 7). Nowhere in his brief does appellant identify an existing medical record which indicates that he did not have gonorrhea at the time of the assaults, and in fact he refers at one point to trial counsel's failure to pursue "possible exculpatory evidence" (Brief for Appellant at 7; emphasis added). By failing to support his claim with anything more than mere allegations, appellant asks us to consider his claim of ineffectiveness in the abstract. We decline to do so. Commonwealth v. Nelson, 514 Pa. 262, 275-76, 523 A.2d 728, 735 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987).

In his second claim, appellant contends that trial counsel was ineffective for failing to seek a continuance or a mistrial in order to pursue other avenues of defense, including additional alibi witnesses, after the victim and her mother gave testimony at trial which varied from their preliminary hearing testimony with respect to when the incidents occurred. At the preliminary hearing, the victim testified that the first offense occurred on January 1, 1981, at approximately 7:00 p.m. and that the second offense occurred on the evening of January 7, 1981. ³ At trial, the victim testified that the first offense occurred on the morning of December 31, 1980, and that the second offense occurred on the morning of January 7, 1981. The testimony of the victim's mother concerning what her daughter told her about the incidents was similarly inconsistent. Appellant asserts that trial counsel's cross-examination of the victim and her mother concerning these inconsistencies was insufficient to remedy the damage done to his defense and that trial counsel was ineffective for failing to request a mistrial or a continuance in order to investigate "other available avenues of defense" and "possible alibi witnesses" (Brief for Appellant at 9).

As noted earlier, we will not consider ineffectiveness claims in the abstract. Appellant's assertion that alternative avenues of defense and additional alibi witnesses may have been available asks us to do just that. He does not specify what avenues of defense trial counsel might have pursued if granted a continuance. The only possible alibi witness specified by appellant is "the person with whom he spoke" (Brief for Appellant at 9) in the district justice's office on the morning of January 7. Appellant theorizes that given the small size of the district justice's staff, trial counsel could easily have located this person despite appellant's inability to remember her name or her physical appearance. At trial appellant referred to the person as the district justice's secretary but testified that he "wouldn't even remember her face today if she was here in the courtroom" (N.T. at 146). It is likely, then, that the secretary would have been equally unable to recognize appellant. To bear his burden of showing that counsel was ineffective for failing to investigate possible witnesses, appellant must show, inter alia, the material evidence the witness would have provided and the manner in which the witness would have been helpful to his cause. Commonwealth v. Early, 377 Pa.Super. 219, 223, 546 A.2d 1236, 1238 (1988), alloc. denied, 521 Pa. 629, 558 A.2d 531 (1989). Appellant has not met this standard. In addition, as noted earlier, appellant was able to offer an alibi witness for the first of the two incidents. We conclude, therefore, that appellant's second claim of ineffectiveness lacks arguable merit.

Appellant's third claim is that trial counsel was ineffective for failing to request a specific jury instruction concerning the significance of appellant's alibi defense. Appellant had filed a notice of alibi defense prior to trial. At trial, as noted earlier, he offered an alibi for...