Commonwealth v. Balodis

• Decision Date: 24 February 2000
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Peter BALODIS, Appellant.
• Court: Pennsylvania Supreme Court

747 A.2d 341

560 Pa. 567

COMMONWEALTH of Pennsylvania, Appellee, v. Peter BALODIS, Appellant.

Supreme Court of Pennsylvania.

Argued February 2, 1999.

Decided February 24, 2000.

Norris E. Gelman, Philadelphia, Harvey Sernovitz, Trevose, for Peter Balodis.

Mary Killinger Asst. Dist. Atty., Patricia E. Coonahan, Dist. Atty., for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CAPPY, Justice.

The question before the court is whether trial counsel was ineffective for failing to preserve for appellate review an objection to the admissibility of testimony by the Commonwealth's expert witness, which improperly bolstered the credibility of the victim. For the following reasons we find that counsel was ineffective, and that accordingly, the decision of the Superior Court must be reversed and the matter remanded for a new trial.

The instant case arose following the allegations of ten year old Jimmy Rosser that he had been sexually molested by appellant on numerous occasions in 1988 and 1989. According to Jimmy, the acts of sexual abuse took place at the Harley Hotel in Montgomery County, Pennsylvania. (Notes of Testimony "N.T." p. 21). At the time these acts allegedly occurred, appellant owned the hotel and Jimmy resided there with his mother and younger brother. (N.T. pp. 19-20). Some time in 1989 Jimmy was moved to a foster home. While in the foster home, Jimmy watched a film on "good touch bad touch". (N.T. p. 27). After the film, several of the other foster children admitted being victimized by "bad touch". Jimmy told his foster parents that he had also been sexually abused. (N.T. p. 27). Jimmy's foster parents notified Montgomery County Children and Youth Services (CYS) of the alleged abuse. (N.T. p. 136). At the request of CYS, Maddi-Jane Sobel, a clinical social worker, interviewed Jimmy. (N.T. p. 103). In the initial interview on August 1, 1989, Ms. Sobel concluded that Jimmy had not been abused. (N.T. p. 104). Ms. Sobel interviewed Jimmy again on November 28, 1989 after which she concluded that Jimmy had been sexually abused. (N.T. p. 105). Jimmy was then interviewed by Detective Hart of the Montgomery County Detective Bureau in connection with a criminal investigation regarding the allegations of sexual abuse. (N.T. p. 148). Ms. Sobel interviewed Jimmy a third time on December 19, 1989 and additional details of Jimmy's sexual victimization were revealed. (N.T. p. 114).

As a result of Jimmy's revelations regarding the activities of appellant at the Harley Hotel, appellant was brought to trial, before a jury, on charges of involuntary deviate sexual intercourse, statutory rape and corruption of a minor.¹ During the course of appellant's trial Ms. Sobel was permitted to testify, over the objection of defense counsel, to the general characteristics of child sexual abuse victims as those traits relate to a failure to promptly report abuse, and after the abuse is reported, to reveal the details of the abuse in stages. (N.T. p. 106). The jury returned its verdict of guilty on all counts on September 12, 1990. Trial counsel prepared post-trial motions, which were filed on January 24, 1991. The post-trial motions did not preserve the objection, referenced above, to the expert testimony of Ms. Sobel. Post-trial motions were denied on February 11, 1991.

On March 19, 1991 new counsel entered his appearance on behalf of appellant. On April 5, 1991 appellant was sentenced on all counts to a total of eleven (11) to twenty-four (24) years of incarceration. A timely notice of appeal was filed from the judgment of sentence. On August 24,1992 the Superior Court dismissed the appeal for failure of counsel to file a brief. Present counsel entered his appearance on December 4, 1996. Appellant then filed a petition under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., seeking reinstatement of the right to a direct appeal, nunc pro tunc, and raising issues regarding the ineffectiveness of trial counsel. Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999). (PCRA is proper procedure for obtaining reinstatement of direct right of appeal nunc pro tunc).

After a hearing on the post-conviction petition, the trial court found appellate counsel ineffective for failing to submit a brief to the Superior Court, and accordingly, granted appellant the right to proceed with his direct appeal, nunc pro tunc. By obtaining nunc pro tunc relief, appellant stands as if the appeal were timely brought following the judgment of sentence. Thus, appellant correctly raises the ineffectiveness of trial counsel, without the necessity of layering the claim referencing the conduct of prior appellate counsel whose representation had been found ineffective. It is as if the actions taken by first appellate counsel had not occurred. See Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161 (1999)

. In its opinion reinstating appellants right to a direct appeal, the trial court declined to address the merits of the claims raised regarding trial counsel's ineffectiveness. The Superior Court reviewed the ineffectiveness claims as to trial counsel and denied relief, affirming the judgment of sentence. This court then granted a Petition for Allowance of Appeal, limited to appellant's allegation of ineffectiveness regarding the omission of a meritorious issue by trial counsel in post-trial motions.

The burden of establishing a claim of counsel's ineffectiveness is on the appellant, as counsel is presumed effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). In reviewing an ineffectiveness claim, the threshold inquiry is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). Should this threshold be met, we must then apply the "reasonable basis" test to determine if the course chosen by counsel was designed to effectuate his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967),overruled on other grounds, Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)

. Application of the "reasonable basis" test pertains to appellate advocacy as well as trial strategy. Commonwealth v. Townsell, 474 Pa. 563, 379 A.2d 98 (1977). If we determine there was no reasonable basis for counsel's chosen course then appellant must demonstrate that counsel's ineffectiveness worked to his prejudice. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Prejudice is established when an appellant demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988).

Appellant's claim of ineffectiveness requires that we first contemplate the admissibility of the expert witness's testimony which appellant asserts improperly bolstered the credibility of the victim. To properly analyze this claim we must consider the context within which the testimony occurred. Prior to the expert's testimony, Jimmy testified that during the year he resided at the Harley Hotel, appellant had anal and oral sex with him on at least ten occasions. (N.T. p. 21). On crossexamination, Jimmy admitted that he originally told Detective Hart that appellant had sex with him every day during the year Jimmy lived at the hotel. Jimmy admitted that the actual number of sexual encounters was 10, not 300. (N.T. p. 38). Jimmy testified that his first sexual encounter was with his mother and father at age three. (N.T. p. 24-25). Jimmy told of other sexual encounters that also occurred when he was three, with former neighbors in a trailer park. (N.T. p. 24). Jimmy testified that he had frequent sexual encounters while residing at the Harley Hotel with men other than appellant. According to Jimmy, he would sit with his mother at the bar and drink three or four beers, until his mother told him to go to his room. (N.T. p. 43). Once in his room men would knock on the door, saying that his mom had sent them. Jimmy, and sometimes his younger brother, would disrobe, and the men would have sex with them. (N.T. 44-45). Jimmy admitted that although he had revealed this information to his foster parents, when Ms. Sobel first interviewed him he did not tell her that he had ever been the victim of sexual abuse. (N.T. p. 26).

Given the nature of the criminal charges at issue trial counsel pursued a defense strategy designed to attack Jimmy's credibility. Trial counsel was quite candid with the trial court in detailing his intention to discredit Jimmy by underlining the incredible nature of Jimmy's testimony and Jimmy's delay in reporting the abuse. Trial counsel intended to cross-examine Ms. Sobel on her complete reversal of opinion regarding whether or not Jimmy had been abused between her first and second interviews with Jimmy. The thrust of the defense strategy was to demonstrate that this child fooled an expert and therefore, he could easily fool the jury. (N.T. pp. 176-178).

Against this background the jury heard the following exchange when the Commonwealth presented Maddi-Jane Sobel, a clinical social worker, as an expert witness on child abuse:

Q. [by the prosecutor]: All right. Now could you tell the ladies and gentlemen of the jury why James Rosser didn't disclose to you, right away, the sexual abuse?

MR. BATEMAN [trial counsel]: Objection.

THE COURT: That's sustained.

Q.: Ms. Sobel, in cases of child sexual abuse, do children normally disclose, right away, incidents of child sexual abuse?

A.: No.

MR. BATEMAN: Objection. Move to strike.

THE COURT: Overruled. BY THE COURT:

Q.: This particular area in which the questions are directed to, is this something that's within the common parameters of the average person, or are you testifying, now, based on your expertise in child abuse areas?

A.: In terms of my expertise, is the basis for which I have testified.

THE

...