Commonwealth v. Bailey
| Citation | 469 A.2d 604,322 Pa.Super. 249 |
| Decision Date | 18 November 1983 |
| Docket Number | 410. |
| Parties | COMMONWEALTH of Pennsylvania v. Patrick L. BAILEY, Appellant. |
| Court | Superior Court of Pennsylvania |
Argued May 26, 1983. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Charles F. Gilchrest, Sharon, for appellant.
Harry A. Penich, Asst. Dist. Atty., Mercer, for Commonwealth, appellee.
Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
Appellant was tried before the Honorable Albert E. Acker and a jury in the Mercer County Court of Common Pleas, and found guilty of indecent assault. 18 Pa.C.S. § 3126. Appellant's trial counsel, a public defender, filed boiler plate post-verdict motions. Appellant sent a letter to Judge Acker raising additional grounds for post-verdict relief, including several instances of ineffective assistance of counsel. Judge Acker appointed new post-trial counsel, who filed amended motions. After conducting post-trial hearings on appellant's claims on May 8 and 27, 1980, Judge Acker denied the amended motions on December 8, 1980, and reaffirmed his order in an opinion dated January 31, 1981. Judgment of sentence was imposed March 20, 1981, and this appeal followed.
The incident involved in this case occurred at about 4:30 p.m. on August 18, 1979, in the Shenango Dam camping area. The nine-year-old victim, whom we will call Jane H., testified at trial to the following events: She was at the camp that day with her family. Her mother had given her some trash to throw away, and she went to the rest room to put the trash in a can by the door. Appellant, a park rest room attendant, appeared and told her to take the trash to a dumpster, which she did. Jane then returned to the rest room to relieve herself, and passed appellant coming out of the rest room. Jane entered the third stall. The door to the stall had no lock and would not close completely. She heard footfalls getting louder and appellant walked in on her by accident. He apologized and excused himself, but returned shortly. The child was on her feet wiping herself with her pants at her knees. Appellant entered the stall and pushed her up against the wall with his hand on her shoulder. He then stooped and put his hands on her crotch, one from in front and one from behind, and began kissing her stomach. He tried to kiss her face. Jane asked what he was doing, but he did not respond. She began to scream. Appellant stood up and told her not to tell anyone. She ran screaming from the rest room and immediately told her parents what had happened.
Appellant's defense was designed to show that Jane had a vivid imagination of which the assault was a product. He did not deny being at the rest room at the time in question, or walking in on Jane by mistake. He testified that when he opened the stall door she was standing with her back to the door, and was knocked forward. He reached to help her, then quickly excused himself.
Appellant now maintains that his trial counsel rendered ineffective assistance in seven particular respects.
Our task in cases of alleged ineffectiveness of counsel 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. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, 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. Id.; Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981).
If the underlying claim or strategy foregone by counsel was without arguable merit, our inquiry into counsel's effectiveness is at an end; counsel cannot be deemed ineffective for failing to advance a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Only if the foregone claim is found to be of arguable merit do we proceed to determine whether there was some reasonable basis for counsel's actions designed to protect his client's interests. Id.; Commonwealth v. Norris, 305 Pa.Super. 206, 451 A.2d 494 (1982).
There is a presumption in the law that counsel was effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Norris, supra. The burden of proving counsel's ineffectiveness never shifts from the party alleging it. Washington v. Maroney, supra.
Appellant first alleges that counsel was ineffective for failing to object to the trial court's qualification of Jane H. as competent to testify. Any such objection would have been groundless.
When a child under the age of fourteen is called to testify, the competency of the infant witness must be independently established. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). In order for competency to be established it must be shown that the infant witness is conscious of the duty to tell the truth. Id. Appellant argues that Jane H. did not evidence a consciousness of the duty to tell the truth, because she only gave terse "yes" answers to leading questions from the trial judge; she did not indicate that she knew the meaning of "truth" and "lie"; and she did not indicate that she knew the moral consequence of telling a lie.
Appellant's contention is partly belied by the record. In response to Judge Acker's query what she had been taught about God, Jane answered that God was always watching you and knew when you lied. Jane's response bespeaks an independent perception that divine moral retribution attaches to the act of lying.
In Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980), we upheld a competency determination over a contention similar to appellant's. There the minor witness testified she could not tell a lie because the judge and her mother would punish her, although she could not explain the difference between "the truth" and "a lie." We think the showing of Jane H.'s competency also compares favorably with showings held adequate in other cases. See Commonwealth v. Payton, 258 Pa.Super. 140, 392 A.2d 723 (1978) (); Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982) ().
Appellant relies on Commonwealth v. Rimmel, 221 Pa.Super. 84, 289 A.2d 116 (1972). There we overturned competency rulings allowing two eight-year-old girls, seven at the time of the incidents, to testify against the defendant on indecent assault charges. We held that the girls had evidenced comprehension of neither the difference between truth and falsehood, nor the moral responsibility to tell the truth under oath, where they knew only that they would be hollered at, beaten, or punished for lying.
Rimmel was distinguished in Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974); Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897 (1977); and Commonwealth v. Short, supra. The same distinction recognized in these cases obtains in the present case. Whereas in Rimmel the minor witnesses were able to relate their duty to tell the truth only to their fears of physical or emotional abuse, in each of the other cases the witness was able to relate lying to moral retribution.
Moreover, we should note the steady trend away from the application of the law found in Rimmel. In both Mangello and Short we criticized Rimmel and limited it to its facts. We recognized that competency determinations are matters peculiarly within the discretion of the trial judge, whose exercise of discretion should not be disturbed absent flagrant abuse. Because the trial judge who makes the competency ruling has a much superior opportunity to assess the competency of the child witness, an appellate court should virtually never reverse the ruling, the better practice being to accept the testimony on its face and leave the matter of credibility to the fact finder. See 6 Wigmore,Evidence § 1821 (Chadbourn rev. 1976); Commonwealth v. Short, supra; Commonwealth v. Mangello, supra. Judge Acker's decision to employ leading questions was within his discretion in determining the competency of Jane H. See 98 C.J.S. Witnesses § 332 (1957) (). Appellant's trial counsel was not ineffective for failing to object to the qualification of the child witness.
Appellant's next contention concerns trial counsel's failure to impeach Jane's credibility through use of her prior statements to park ranger Harry O'Connell and to policemen Eric Baugher and Ronald Staul. Appellant presented evidence at the post-conviction hearing designed to show that Jane's statements to O'Connell, Baugher, and Staul were discrepant with her trial testimony.
O'Connell interviewed Jane immediately after the incident and prepared an incident report. The version of the incident appearing in O'Connell's report is that Jane went to the rest room to throw away a bag of garbage and to use the facilities that the door to the rest room was propped open with a garbage can, in which Jane attempted to put the bag of trash; that the rest room cleaner (Bailey) told her to throw the bag in the dumpster nearby, which she did; that she returned to the women's side of the rest room; that the door was closed and no one was inside, so she went in; that the rest room attendant...
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