Com. v. Wienckowski

• Decision Date: 17 February 1988
• Citation: 537 A.2d 866,371 Pa.Super. 153
• Parties: COMMONWEALTH of Pennsylvania v. Richard WIENCKOWSKI, Appellant.
• Court: Pennsylvania Superior Court

Page 866

537 A.2d 866

371 Pa.Super. 153

COMMONWEALTH of Pennsylvania v. Richard WIENCKOWSKI, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 1, 1987.

Filed Feb. 17, 1988.

Aaron C. Finestone, Philadelphia, for appellant.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before CIRILLO, President Judge, and BROSKY and BECK, JJ.

CIRILLO, President Judge.

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County challenging the conviction of Richard Wienckowski by a jury for possession of an instrument of crime, simple assault, involuntary deviate sexual intercourse, and kidnapping. C. Van Youngman, Esquire, represented Wienckowski at trial and subsequently filed post-verdict motions challenging the weight and sufficiency of the evidence. Aaron Finestone, Esquire, represented Wienckowski on these post-verdict motions, and supplemented them with post-verdict motions alleging ineffective assistance of counsel. An evidentiary hearing was held on the ineffectiveness issue. Shortly thereafter, the post-verdict motions, both initial and supplemental, were argued, briefed, and denied.

On the lesser charges of simple assault and possession of an instrument of crime, Wienckowski was sentenced to identical one-to two-year periods of incarceration to run concurrently with a six- to fifteen-year sentence on the involuntary deviate sexual intercourse conviction. On the kidnapping charge, he received a sentence of four to fifteen years to run consecutively with the sentence on the sex offense, bringing his period of incarceration to a total of ten to thirty years. Counsel filed a motion to reconsider sentence in which he argued merger and challenged the imposition of consecutive sentences. The trial judge granted him limited relief by suspending the sentence for simple assault on the grounds of merger and reimposing the same sentence on the other convictions.

On appeal, Wienckowski raises three issues with respect to his conviction and sentencing. First, he argues that his trial counsel was ineffective in: (1) giving an inadequate opening statement; (2) bringing out damaging evidence which had not been introduced by the Commonwealth; and (3) attacking Wienckowski's character during closing argument and pronouncing him guilty of crimes for which he had not been charged. Wienckowski's second contention is that the trial court's verdict was based on insufficient evidence or was contrary to the weight of the evidence, due to the lack of credibility of the complaining witness. The appellant's final contention is that the trial court erred in imposing consecutive sentences. We affirm.

Ineffectiveness of Counsel

In any ineffectiveness of counsel claim, the standard for determining counsel's ineffectiveness is based upon the presumption of competent stewardship, and the burden of proving otherwise is on the defendant. See Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987).

To make out a valid claim of ineffectiveness of counsel, then, a defendant must first demonstrate that the underlying issue is of arguable merit. If so, inquiry must then be made into whether the course of action chosen by counsel was not reasonably designed to protect the defendant's best interests. Id. Finally, the defendant must show that he was actually prejudiced by his counsel's ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

The first ineffectiveness claim raised by Wienckowski is that his counsel improperly prejudiced his case by failing to make an adequate opening statement. Specifically, Wienckowski contends that the opening statement failed: (1) to provide the jury with the opportunity to establish a rapport with counsel; (2) to apprise the jury of the defense theory of consent; and (3) to instruct the jury to look for any inferences of consent which, appellant believes, could be drawn from both complainant's mode of dress and her demeanor.

This argument fails for one very simple reason. The function of the opening statement is not an evidentiary one; rather, its purpose is merely to inform the jury about the case, to provide them with some background, and to present what each side intends to prove. See Commonwealth v. Saltzberg, 358 Pa.Super. 39, 516 A.2d 758 (1986). There is no requirement in Pennsylvania that the defense attorney use the opening statement to establish a "rapport" with the jury. Instead, Pennsylvania courts consider such questions as the contents of an opening statement, or even whether to use one at all, to be matters of trial strategy best left to trial counsel. Commonwealth v. Tarver, 253 Pa.Super. 185, 384 A.2d 1292 (1976).

In the case at bar, trial counsel indicated at the ineffectiveness hearing that, due to the fact that his investigations into the case produced no evidence suggesting that the victim was, in fact, a prostitute, he believed that the best course of action would be to admit what was unavoidable (the identification of the parties to the incident) and to avoid any accusations that the victim was a prostitute or of such ilk until such time as he could hear her testimony. In light of the fact that the victim was a twenty-six-year-old retarded woman of unpredictable disposition, we believe such an action to have been reasonably designed to effectuate the best defense possible under unpredictable circumstances.

We similarly do not find that the failure to preview the use of the consent defense in the opening statement prejudiced the defendant. Because the entire body of the case was the word of the complainant against the word of the defendant, all relevant facets of the consent defense were made abundantly clear by the defendant's trial testimony. An alternative approach in the opening statement may have been no more effective in the long run, but the appellant cannot avail himself of such hindsight analysis. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

In a closely related issue, Wienckowski claims that his defense counsel was ineffective in failing to "develop" evidence later at trial as to what the victim wore and how she was "hanging out" on the corner. This argument, although briefed and argued before the trial judge, was not memorialized in post-trial motions. For this reason, the trial judge considered it waived, citing Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986). In his brief, however, Wienckowski argues this issue anew without providing any legal argument suggesting that this issue should be treated as anything other than waived. Consequently, we likewise consider the issue waived.

Wienckowski makes additional ineffectiveness claims which merit the same treatment. Specifically, he alleges that his counsel was ineffective in: introducing evidence concerning the defendant's gun; stipulating to hearsay evidence; failing to object to hearsay testimony; and failing to pursue the issue of identification.

Wienckowski's final claim of ineffectiveness is that the closing argument employed by counsel unduly prejudiced him in the eyes of the jury. Specifically, Wienckowski objects to counsel's remarks that his client was a "bad person" and was guilty of crimes for which he had not been charged. At the ineffectiveness hearing, trial counsel indicated that he had done so in an attempt to ensure that the jury would divorce from their consideration of his guilt on the charges brought any emotional reaction to his client's testimony that he believed he was hiring a prostitute whose earnings he later stole.

In addition, trial counsel indicated that, by expressing distaste to the jury for his client's "seamy" lifestyle, he was establishing common ground with the jury and demonstrating that it was possible to both be shocked by the defendant's professed lifestyle and yet still reach a verdict of not guilty on the crimes charged. As the trial judge noted, the admission of "peccadillos" against the defendant's obvious interest is also a legitimate method of demonstrating his honesty, since a person who is lying would ordinarily place himself in the best light possible.

Clearly, then, the actions of the trial counsel had a reasonable basis designed to effectuate the appellant's best interests. It follows that any prejudice that can be drawn from the counsel's characterization of his client fell short of constituting reversible error. Cf. Commonwealth v. Zimmerman, 351 Pa.Super. 5, 504 A.2d 1329 (1986) (counsel's characterization of his case as "gruesome" and his admonitions that the jury should not confuse the client with his counsel held insufficient to merit reversal).

Sufficiency and Weight of the Evidence

The second argument raised by Wienckowski is that the verdict was based on insufficient evidence, or, in the alternative, it was contrary to the weight of the evidence. Evidence is legally sufficient to support a verdict if, when viewed in the light most favorable...