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filed: December 7, 1979.


No. 1031 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, imposed on Information Nos. 54 and 55 April Term, 1976.


Holly Maguigan, Philadelphia, for appellant.

Sheldon M. Finkelstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Van der Voort, Wieand and Lipez, JJ. Lipez, J., files a concurring opinion. Van der Voort, J., files a dissenting opinion.

Author: Wieand

[ 273 Pa. Super. Page 495]

Keith Barren appeals from the judgment of sentence imposed following his convictions of forcible rape*fn1 and statutory rape.*fn2 All but one of the issues raised pertain to the effectiveness of trial counsel.*fn3

The charges against appellant arose from an alleged sexual assault on an eleven-year-old girl. The minor complainant,

[ 273 Pa. Super. Page 496]

Helen Wells, testified that she had been awakened from sleep during the early morning hours of March 13, 1976, by appellant, who had been staying with her mother, Inez McCollum. The minor could not fix the time but said it was sometime after 1:00 o'clock, A.M. She testified that appellant, armed with a knife, had taken her to the bathroom of the apartment, where he ordered her to disrobe and raped her. When she cried out, appellant stuffed a wash cloth into her mouth. Appellant then obtained outer garments for the child, and after she had dressed herself, he took her to an unoccupied building adjacent to their apartment. There she was once again forced to undress and submit to appellant's sexual advances. Afterward, appellant threatened to kill the child if she told anyone about his conduct. Helen did not tell her mother of it until March 16, 1976, after which the incident was promptly reported to the police.

Following conviction, post trial motions were filed and denied. Appellant was sentenced to serve from two to ten years in prison. No direct appeal was filed. In May, 1977, appellant filed a P.C.H.A. petition. Following a hearing thereon, the trial court vacated the sentence and permitted appellant to file post trial motions nunc pro tunc. A motion for new trial raised, inter alia, the alleged ineffective assistance of counsel, and an evidentiary hearing was held thereon. Thereafter, appellant's post trial motions were dismissed, and the same sentence was reimposed. The present appeal is from that judgment of sentence.

In determining the claim of ineffective assistance of counsel we apply, as we must, the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

"Our task in cases of this nature . . . 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. . . . We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to

[ 273 Pa. Super. Page 497]

    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. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis."

In applying the above test, it is axiomatic that the threshold question is whether the course which counsel is accused of failing to pursue had some reasonable basis. Counsel will not be deemed ineffective if the action which he failed to take would have been frivolous or futile. Commonwealth v. Nero, 250 Pa. Super. 17, 378 A.2d 430 (1977); Commonwealth v. Yarbough, 248 Pa. Super. 356, 375 A.2d 135 (1977).

Many of the actions which it is now contended that trial counsel should have taken would indeed have been futile. Thus, we find no merit in appellant's claim that counsel was ineffective for failing to object to the competency of the eleven-year-old Commonwealth witness and alleged victim. The competency of youthful witnesses is to be determined in the discretion of the trial judge after an inquiry as to mental capacity. For such a witness to be competent there must be (1) a capacity to communicate, including an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe and remember the occurrence, and (3) a consciousness of the duty to speak the truth. Rosche v. McCoy, 397 Pa. 615, 620-21, 156 A.2d 307, 310 (1959). The trial judge in the instant case examined the minor witness and determined that she was competent. The record of his questions and the answers of the witness suggest most clearly that an objection by defense counsel would have been futile, perhaps even ill-advised.

Similarly, trial counsel was not ineffective for failing to make an objection to the trial judge's reference to "the rape" or to "a sordid story" during his closing instructions. His charge clearly left it to the jury to determine whether

[ 273 Pa. Super. Page 498]

    the Commonwealth's evidence proved that a rape had in fact occurred and that ...

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