Kitrell v. Dakota

• Decision Date: 07 April 1988
• Parties: Vernette KITRELL, Appellee, v. Juan R. DAKOTA, Appellant.
• Court: Pennsylvania Superior Court

Page 301

540 A.2d 301

373 Pa.Super. 66

Vernette KITRELL, Appellee, v. Juan R. DAKOTA, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 14, 1987.

Filed April 7, 1988.

[373 Pa.Super. 68] Joel F. Bigatel, Philadelphia, for appellant.

Fern L. Kletter, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before McEWEN, MONTEMURO and KELLY, JJ.

KELLY, Judge:

Appellant, Juan Dakota, appeals from an order determining paternity and awarding child support. We affirm.

Appellant raises four contentions on appeal. First, appellant contends the trial court erred in failing to recuse itself, sua sponte, as the result of its exposure to allegedly inadmissible and highly prejudicial evidence regarding blood test results during a pre-trial hearing. We find no merit in this contention. Next, appellant contends that trial counsel was ineffective in failing to conduct permitted discovery, failing to effectively cross-examine the plaintiff, and failing to object to prejudicial remarks by the prosecution. Appellant concedes this issue is without merit; however, appellant contends the trial court's disposition was only proper because post-trial counsel was ineffective in failing to present evidence in support of the claims of trial counsel's ineffectiveness. In Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984), this Court announced that the standard then applicable for disposition of ineffectiveness claims in criminal cases was to be applied to ineffectiveness claims in civil paternity proceedings. In this case we reconsider Banks in light of clarification of the criminal ineffectiveness standard provided by Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) and other recent cases, and conclude that those clarifications apply equally to claims of ineffective assistance of counsel in civil paternity proceedings. Applying the Pierce analysis, we find no merit in appellant's contentions of ineffective assistance. Finally, appellant contends that the evidence was insufficient to establish paternity; we find no merit in the contention.

FACTS AND PROCEDURAL HISTORY

On August 20, 1984, appellee, Vernette Kitrell, filed a complaint requesting child support for her minor child, naming appellant as putative father and defendant. Appellee testified at the paternity trial on October 10, 1985, that she first met appellant at an Indian Powwow in August of 1983 and that they commenced a sexual relationship in September 1983 which continued until appellee was 3- 1/2 months pregnant with the subject child. She denied having relations with any other man between September and November of 1983; she indicated that her last menstrual cycle occurred in October of 1983. She testified further that she informed appellant of her pregnancy in late November 1983, and that appellant continued to see her but informed her they could not marry as he was engaged to another. Appellant denied these facts at trial. The trial court, sitting as finder of fact, however, specifically found appellee's version of events to be more credible. The court ruled that appellee had established that appellant was the father of the child by the preponderance of the evidence; accordingly, an order was entered finding appellant to be the father of the child.

Appellant filed post-trial motions alleging, inter alia, ineffective assistance of trial counsel. At that juncture appellant had been represented by two different counsel, pre-trial counsel, trial counsel, and pre-trial counsel again for post-trial proceedings. Pre-trial counsel had requested and was granted permission by the trial court to conduct civil discovery; he intended to depose the appellee. However, when trial counsel succeeded pre-trial counsel, she chose not to depose appellee. Instead, trial counsel elected to file a motion to suppress evidence of blood test (HLA) results (which was granted) and to proceed to trial. Pre-trial counsel, in turn, succeeded trial counsel, and asserted in post-trial motions that trial counsel was ineffective for failing to depose the appellee and for failing to object to the prosecution's remark made during pre-trial motions that the blood tests were "99.99 per cent."

The trial court granted an evidentiary hearing on the issue of trial counsel's alleged ineffectiveness; however, post-trial counsel elected to forego the opportunity to present evidence in support of those claims (e.g. testimony of appellant and/or trial counsel) and instead presented argument that trial counsel also ineffectively cross-examined the appellee at trial. We note that this new argument had not been presented in appellant's written post-trial motions.

All of appellant's post-trial motions, including the ineffectiveness claims, were denied. Subsequently, on August 20, 1986, a hearing was held to determine appellant's support obligation. After argument on appellant's exceptions to the recommended award, the court entered a final order of support. Post-trial counsel was permitted to withdraw and present counsel (appellant's third) was appointed to represent appellant in this timely appeal. We shall address appellant's contentions on appeal seriatim.

I.

Appellant first contends that the trial court erred in failing to recuse itself, sua sponte, following its exposure to allegedly inadmissible and highly prejudicial evidence regarding blood test results, i.e. the district attorney's assertion that the test results were "99.99 per cent." We find no merit in the contention.

The challenge is based upon an exchange which occurred during a pre-trial hearing on the admissibility of the blood test results. (N.T. 10/9/86 at 10). In response to the challenged statement by the district attorney, the trial court, without waiting for objection by counsel for appellant, admonished the district attorney that admissibility of the tests was the only matter at issue. (N.T. 10/9/86 at 10). After some further discussion regarding admissibility, the district attorney agreed not to present the test results at trial; the trial court then noted that any further objections regarding the tests were rendered moot. (N.T. 10/9/86 at 12). Counsel for both parties agreed. (N.T. 10/9/86 at 12-13).

In its Pa.R.A.P. 1925(a) opinion, the trial court has unequivocally denied consideration of the district attorney's remark in reaching its decision. Trial Court Opinion at 4. We accept this assurance; we note that judicial fact finders are deemed capable of disregarding most inadmissible evidence. Cf. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (a judge in bench trial is presumed capable of disregarding inadmissible evidence); Commonwealth v. Stinnett, 356 Pa.Super. 83, 97, 514 A.2d 154, 161 (1986) (same). Consequently, we reject appellant's first contention.

II.

Appellant next raises several allegations of ineffective assistance of counsel. Before addressing the merits of these claims, we must first determine the proper standard to be applied to ineffectiveness claims regarding representation afforded defendants in paternity proceedings.

A.

In Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982), this Court concluded that because of the special interests at stake in paternity actions, an indigent defendant is entitled to representation by court-appointed counsel in order to ensure the defendant due process of law. In White v. Gordon, 314 Pa.Super. 185, 460 A.2d 828 (1983), this Court held that since indigent paternity defendants have a right to court-appointed counsel, "non-indigent paternity defendants must, at least, be afforded a reasonable opportunity to secure representation by counsel to assist in the defense of such claims." 460 A.2d at 830.

In Banks v. Randle, supra, a panel of this Court stated that Corra v. Coll, supra, and White v. Gordon, supra, had firmly established the right to counsel in paternity proceedings. This Court then reasoned that the right to counsel would be meaningless in this context unless it included the right to challenge counsel's effectiveness on direct appeal and explained further that a two-step analysis would be applied to assess the merits of such ineffectiveness claims:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client's interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025, 1028 (1980).

486 A.2d at 977.

The correctness of these decisions has not been challenged by either party in this appeal. However, in the time since Banks v. Randle, supra, was decided, our Supreme Court has refined its ineffective assistance of counsel analysis as applied in a criminal context. In Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987), this Court summarized the current standard as follows [I]n 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; 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. Pierce, Pa. , [157-60], 527 A.2d 973, 975-76 (1987); see also Commonwealth v. Johnson, Pa. , [----], 532 A.2d 796, 799 (1987). ("The standard of review is that there must be a reasonable probability that but for counsel's unprofessional errors, the result of the trial would have been different.").

534 A.2d at 485. With respect to the issue of whether counsel's act or omission could have had a reasonable basis designed to effectuate appellant's interests, this Court noted specifically that:

The test must be objective rather...