No. 683 April Term 1977, Appeal from an Order of the Court of Common Pleas of Allegheny County, Criminal Division (the late Hon. Arthur J. Wessel, Jr.), dated Nov. 4, 1974, imposing sentence at CI 73-6575A Oct. Term, 1973, following earlier denial of post-trial motions.
Robert Lincoln Potter, Pittsburgh, for appellant.
Robert E. Colville, District Attorney, Pittsburgh, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a concurring and dissenting opinion, in which Van der Voort, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 266 Pa. Super. Page 317]
In 1974 appellant was convicted of rape,*fn1 statutory rape,*fn2 two counts of sodomy,*fn3 corrupting the morals of a minor,*fn4 and assault and battery with intent to ravish.*fn5 The trial was before a jury, and appellant was represented by private counsel. After sentence was imposed appellant took an
[ 266 Pa. Super. Page 318]
appeal to this court, on which appeal he was represented by the Public Defender. We affirmed the judgment of sentence. Commonwealth v. Reidenbaugh, 238 Pa. Super. 14, 352 A.2d 446 (1975) (HOFFMAN, J., dissented on the question of waiver of an issue of illegality of the sentence). Represented by new counsel (present appellate counsel), appellant filed a petition for allowance of appeal in the Supreme Court alleging inter alia that his first (Public Defender) appellate counsel had been ineffective in failing to raise certain issues to our court. On April 5, 1977, the Supreme Court entered the following order per curiam :
Petition granted. Order of the Superior Court affirming the judgment of sentence is vacated and the case is remanded to the Superior Court for another appeal on the merits from the judgment of sentence entered by the Court of Common Pleas of Allegheny County.
The present appeal to our court followed.
We take the Supreme Court's order to mean that the Court found merit in appellant's claim of ineffectiveness of first appellate counsel. Therefore, all issues raised on this second appeal to us are properly before us. "[W]here an appellant is denied the effective assistance of counsel on appeal, the proper remedy is to afford appellant a new appeal in which he may reassert the issues adversely affected by his initial counsel's ineffective stewardship of his appeal." Commonwealth v. Sullivan, 472 Pa. 129, 146, 371 A.2d 468, 476 (1977).
Appellant argues that he is entitled to a new trial because the verdict was against the weight of the evidence.*fn6 We are not persuaded.*fn6a
[ 266 Pa. Super. Page 319]
Appellant's argument rests mainly on his review of various inconsistencies in the prosecutrices' testimony.*fn7 However, on one key passage counsel has construed the testimony in a manner overly favorable to his client. Counsel states: "Janet Mills [prosecutrix], when asked on cross-examination whether she and Dennis [a co-defendant] had been kissing in the front seat of the car, replied that she was not sure but that they could have been." Appellant's Brief at 43 (emphasis in original). This statement is clearly meant to cast doubt on the prosecutrix's other testimony that she was being taken on a detour against her will. However, examination of the transcript will show that the jury was entitled to understand Ms. Mills as saying that while the co-defendant could have been kissing her, he was not; in other words, that it was physically possible for him to kiss her because they were side-by-side in the front seat of the car, but that he did not do what he possibly could have done.*fn7a
[ 266 Pa. Super. Page 320]
Counsel has made other arguments, but they are in essence a request that we reach different conclusions on credibility than did the jury. In such circumstances a trial court is in a far better position than we to judge whether justice has miscarried; hence the rule that "[w]hether a verdict is contrary to the evidence or the weight of the evidence so as to require a new trial is within the discretion of the trial judge." Commonwealth v. Ashford, 227 Pa. Super. 351, 354, 322 A.2d 722, 723 (1974). Here the lower court denied appellant's motion for new trial on this ground. We cannot say on the record before us that this ruling was an abuse of discretion.
Appellant argues that his trial counsel was ...